FLSA and De Minimus Time: What's a Few Minutes Here and There?

Employers often struggle with whether small amounts of off-the-clock work must be paid under the Fair Labor Standards Act (FLSA). With increased use of smartphones and remote work, understanding when ‘a few minutes here and there’ becomes compensable time is more important than ever.

On May 28, 2026, the Department of Labor (DOL) issued a new Opinion Letter (FLSA2026-8), where it considered whether certain pre-shift activities for non-exempt hospital workers were compensable. The DOL stated that pre-shift activities, such as equipment preparation or chart review, was compensable time, but that the time employees spent waiting in line to clock in at the timekeeping station was not compensable. The DOL stated that “Whether time is de minimis is a fact-specific analysis, considering the practical administrative difficulty of recording the time, the aggregate amount of compensable time involved, and the regularity with which the work occurs.” The DOL further emphasized the lesser role that the de minimis doctrine has now in the wage and hour world, stating, “Employers, including the hospital at issue here, should nonetheless be particularly careful about how and to what extent they apply the de minimis doctrine. Particularly given the technological advances that have made it possible for employers to track employees’ work time with increasing precision, employers should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work with any degree of regularity.”

De minimis Time

Understanding when “a few minutes here and there” must be paid work can be challenging. Employers often become frustrated when employees work a few minutes off the clock despite being instructed not to do so. It was once commonly assumed that a few random off-the-clock minutes were generally safe, but that may no longer be the case.

The General Rule

The FLSA requires employers to pay non-exempt employees their regular rate of pay for all hours worked and one and a half times their regular rate for all hours worked over 40 in a workweek. Employers must track employees’ hours worked to meet this overtime requirement. Most employers require employees to clock in and out or complete daily time records.

But what if an employee checks her email later that night?

What if she receives a text from her supervisor during her lunch break?

What if she fills out an HR form at home?

Does She Have to Be Paid for That Time?

Technically, yes. However, an employer may not have to pay for that time if it is de minimis. The de minimis rule prevents employees from recovering compensation for work when the work involves only a few seconds or minutes, in the aggregate, beyond scheduled working hours (sometimes referred to as split-second absurdities). The purpose of the rule is to relieve employers of the administrative burden of capturing every second an employee may work.

How Much Time Is Too Much to Be Considered De Minimus?

There is no bright-line rule or defined amount of time, such as three minutes or seven minutes. Instead, courts conduct a fact-specific, case-by-case analysis considering the following factors:

• The practical administrative difficulty of recording the additional time
• The aggregate amount of compensable time
• The regularity of the additional work

It is also irrelevant if an employee “volunteers” to do extra compensable tasks. If the tasks are compensable, whether required or on a voluntary basis, the employer must pay for the time it took to complete them.

Two Common Hypotheticals

Text Message About a Shift

A store manager sends a group text to all non-exempt employees who are clocked out to ask whether someone can cover a shift the next day. An employee reads the text, checks her calendar, makes a personal phone call to adjust her schedule, and then responds that she can take the shift.

Although the employee may have spent several minutes handling related personal tasks, the only potentially compensable time is the brief time spent reading and responding to the message. That time is likely de minimis.

However, if this type of communication occurs frequently, the aggregate time may no longer be trivial, and it may become reasonable for the employer to estimate and compensate the employee for that work.

Post-Duty Equipment Care

A technician is required to clean specialized tools at home after each shift to remove chemicals and grease so the tools can be used the next day. This cleaning is a regular, daily task and takes several minutes each time.

Because the task is regular, required, and easily tracked or estimated, the time spent cleaning the tools is likely compensable. The employer could address this by allowing the employee to report the time or by requiring the cleaning to occur before the employee clocks out.

Key Takeaways for Employers

While the de minimis doctrine addresses the difficulty of recording trivial amounts of off-the-clock work, it does not allow employers to ignore compensable time that is ascertainable and regularly required. Small amounts of time can add up and, over time, may result in an FLSA claim. With advances in time-tracking technology, courts are increasingly skeptical of arguments that recording short periods of work is administratively burdensome.

This article provides a general overview of the de minimis standard to help you understand and evaluate your organization’s compliance with the FLSA. However, every situation is fact-specific, and state or local laws may also apply. If you have questions about how the FLSA applies to your workplace, please contact the authors of this article or a member of the Woods Rogers Labor & Employment team.