The FLSA De Minimis Rule: Three-Factor Test and Recovery Options

The FLSA de minimis rule lets employers leave very small, irregular slices of work time off the paycheck when those slivers are genuinely impractical to track. It comes from 29 CFR § 785.47, which permits disregarding “insubstantial or insignificant periods of time” that cannot reasonably be recorded for payroll.¹ The rule is narrower than many employers assume. Time that is predictable, recurring, or tied to your core duties must be paid, no matter how brief.

The Three-Factor Test Courts Use

The Supreme Court recognized the de minimis principle in Anderson v. Mt. Clemens Pottery Co., holding that work of “only a few seconds or minutes” beyond scheduled hours can be treated as a trifle in light of “the realities of the industrial world.”² The regulation that followed sets out three factors courts weigh together whenever an employer invokes the rule:

Administrative difficulty. How hard is it, in practical terms, to record the extra time? If the effort to capture a few seconds outweighs the value of the time itself, this factor leans toward the employer.
Aggregate amount. How much time adds up across a pay period, or across an entire workforce? A couple of minutes a day sounds trivial until you multiply it out over a year.
Regularity. How often does the task occur? A one-off, unpredictable duty is easier to excuse than something done every shift.

The regulation is explicit that an employer cannot arbitrarily disregard “any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”¹ That is where employers most often lose. If the task is recurring and predictable, it stops being a trifle even when it takes only a minute or two.

The 10-Minute Benchmark

There is no universal bright line, but one figure comes up repeatedly. The regulation itself cites Hawkins v. E.I. du Pont de Nemours & Co. for the proposition that 10 minutes a day is not de minimis.¹ The same regulation notes that time worth even $1 in additional weekly compensation is “not a trivial matter to a workingman.” Daily unpaid tasks that add up to more than a handful of minutes rarely survive scrutiny, especially when they happen on a predictable schedule.

What Tasks Actually Qualify

Genuinely de minimis moments share a profile. They are brief, sporadic, and hard to pin to a fixed duration. Glancing at a posted schedule on the way in, exchanging a quick word with a supervisor while walking to a workstation, or waiting a few seconds for a computer to power on can fit the category. These moments lack a set length, happen irregularly, and are not a meaningful part of the job.

The Department of Labor’s own guidance frames the rule as covering “uncertain and indefinite periods of time… a few seconds or minutes in duration” where disregarding them is “justified by industrial realities.”³ The operative word is “uncertain.” Once an employer can predict a task will take three minutes every shift, the uncertainty is gone and so is most of the defense.

Work That Must Be Paid Regardless

Some pre-shift and post-shift activities are so tied to the core job that the de minimis rule does not reach them. The test is whether the activity is “integral and indispensable” to your principal duties. If you cannot do your job without it, it counts as work.

Donning and Doffing Protective Gear

In IBP, Inc. v. Alvarez, the Supreme Court held that putting on and taking off specialized protective equipment required for hazardous work is a “principal activity” under the Portal-to-Portal Act.⁴ Once that donning starts the continuous workday, walking to the production floor and waiting to remove the gear at the end of the shift are also compensable. That is different from putting on a basic uniform, which generally does not trigger pay.

Travel Between Job Sites

Your ordinary commute is not paid. The Portal-to-Portal Act specifically excludes “walking, riding, or traveling to and from the actual place of performance of the principal activity.”⁵ Travel between job sites during the workday is different. Once the workday has started, moving from one location to another is part of the compensable day. An employer who sends you across town mid-shift cannot dismiss the drive as de minimis.

Security Screenings

Federal law here surprises a lot of people. In Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court held that time spent waiting for and undergoing mandatory post-shift security screenings at a warehouse was not compensable, because the screenings were not “integral and indispensable” to the workers’ principal activity of retrieving and packaging products.⁶ The employer could have eliminated the screenings without affecting the ability to do the job, which under federal law makes them noncompensable postliminary activities. Some states apply stricter rules, so state law can change the outcome.

Rounding Is a Different Doctrine

Employers sometimes treat rounding and de minimis as interchangeable. They are not. Under 29 CFR § 785.48, employers may round clock-in and clock-out times to the nearest 5, 6, or 15 minutes, but only if the rounding averages out so employees are fully compensated for all hours actually worked over time.⁷ Rounding that consistently shaves minutes in the employer’s favor violates the regulation.

The de minimis rule allows an employer to skip recording certain time altogether. Rounding records the time and adjusts it. An employer cannot stack the two, rounding down first and then dismissing whatever is left as de minimis. DOL guidance is explicit that rounding is acceptable only when it does “not result, over a period of time, in failure to count as hours worked all the time the employees have actually worked.”³ A rounding policy that only ever cuts against you is its own violation, separate from any de minimis question.

Why the Defense Is Weaker Than It Used to Be

The administrative-difficulty prong made much more sense in 1946, when time clocks were mechanical and payroll ran by hand. Digital systems now capture clock-ins to the second through mobile apps, biometric scanners, and badge readers. Courts increasingly reject the “too hard to track” argument when the employer already owns a system capable of tracking the time.

The most significant recent shift came from outside federal law. In Troester v. Starbucks Corp., the California Supreme Court held that state wage law has never adopted the federal de minimis doctrine.⁸ Under the relevant state wage order, employees must be paid for “all hours worked,” and the court found the federal rule, which could allow an employer to require “as much as 10 minutes a day without compensation,” less protective than that standard. The court noted that “employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring work time.” Other states with strong wage-and-hour protections may take a similar path, so the federal de minimis standard does not necessarily apply where you work.

What You Can Recover If Time Was Withheld

The financial exposure for an FLSA violation goes well beyond the missing wages. Under 29 USC § 216(b), a successful employee recovers the full amount of unpaid wages plus “an additional equal amount as liquidated damages.”⁹ That effectively doubles the bill. If your employer owes you $3,000 in unpaid overtime built from uncompensated pre-shift tasks, the total climbs to $6,000 before attorney fees.

The standard statute of limitations is two years from the date the unpaid wages were earned. If the violation was willful, the window extends to three years.¹⁰ “Willful” means the employer either knew its conduct violated the FLSA or acted with reckless disregard for whether it did. Three years of back pay, doubled, is a substantially larger recovery than two.

Filing a Complaint

Complaints go to the Department of Labor’s Wage and Hour Division, online or by phone at 1-866-487-9243.¹¹ Before you file, gather the employer’s name and address, the name of a manager or owner, a description of the work you performed, the dates involved, and details of how and when you were paid. The nearest field office will contact you within two business days to decide whether to investigate.

Your own records help. Note start and end times, tasks you performed before or after clocking in, and any required activity done off the clock. Employers carry the burden of maintaining accurate time records under the FLSA, and when those records are incomplete or missing, courts tend to resolve the ambiguity in the employee’s favor.

1
eCFR. 29 CFR 785.47 – Where Records Show Insubstantial or Insignificant Periods of Time
2
Legal Information Institute (Cornell Law School). Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)
3
U.S. Department of Labor. FLSA Hours Worked Advisor
4
Justia. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005)
5
Office of the Law Revision Counsel. 29 USC 254 – Relief From Liability and Punishment
6
Justia. Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014)
7
eCFR. 29 CFR 785.48 – Use of Time Clocks
8
Justia. Troester v. Starbucks Corp., S234969 (2018)
9
Office of the Law Revision Counsel. 29 USC 216 – Penalties
10
Office of the Law Revision Counsel. 29 USC 255 – Statute of Limitations
11
Worker.gov. Filing a Complaint With the Wage and Hour Division