Off-the-Clock Work Under the FLSA: Pre-Shift Task Risks

Under the FLSA, nonexempt employees must be paid for work the employer suffers or permits, even if nobody asked for it. Pre-shift setup, post-shift cleanup, after-hours messages and some travel are compensable when they are part of the job. Security screenings are usually not, after Integrity Staffing v. Busk, but the line is narrower than many employers assume.

Key takeaways

• The Department of Labor's Fact Sheet #22 says work not requested but suffered or permitted is work time that must be paid, and "the reason is immaterial."
• A written policy against off-the-clock work is not enough; 29 CFR 785.13 says management must enforce it.
• Busk held that waiting for and undergoing a security screening was not compensable, because it was not integral and indispensable to the employees' principal work.
• The de minimis rule covers only uncertain, practically unrecordable seconds or minutes, not regular daily tasks.
• A reasonable process for employees to report unpaid time, and a culture that does not discourage it, is the core defense for remote and after-hours work.

What counts as off-the-clock work under the FLSA?

Off-the-clock work is any time a nonexempt employee spends working that is not recorded and paid. The Department of Labor's Fact Sheet #22 on hours worked states the rule plainly: work not requested but suffered or permitted is work time. If a supervisor knows, or has reason to believe, an employee is working before clock-in, the time counts.

The regulation at 29 CFR 785.13 adds the part employers often miss. It says it is management's duty to see that work is not performed if it does not want it performed, that management "cannot sit back and accept the benefits without compensating for them," and that "the mere promulgation of a rule against such work is not enough." In other words, the handbook sentence banning off-the-clock work is a starting point, not a defense.

Which pre-shift and post-shift tasks are compensable?

The Portal-to-Portal Act excludes ordinary commuting and activities that are preliminary or postliminary to the principal work. The Supreme Court's test, restated in Integrity Staffing Solutions v. Busk, is whether an activity is "integral and indispensable" to the principal activities: an intrinsic element of them and one the employee cannot dispense with if they are to do the job.

Activity	Usually compensable?	Why
Booting up a computer and opening required systems before taking calls	Often yes	The employee cannot do the job without it
Counting a cash drawer before opening	Often yes	Tied directly to the cashier's work
Receiving the shift briefing or task assignments	Yes	Part of the work itself
Waiting for and passing a theft-prevention bag check at exit	Usually no	Busk held this was not integral to the principal work
Walking from the parking lot to the time clock	Usually no	Ordinary preliminary travel
Cleaning up a workstation after clock-out at a manager's request	Yes	Work suffered or permitted
Required training outside normal hours that is job related	Yes	Fact Sheet #22 excludes training only when it is outside normal hours, voluntary, not job related and no other work is done

Treat this table as a starting point. Whether a specific task is integral depends on the job, and state laws can be stricter than the FLSA.

What did Integrity Staffing v. Busk decide about security screenings?

In December 2014, a unanimous Supreme Court held that warehouse workers' time spent waiting for and undergoing antitheft screenings at the end of their shifts was not compensable under the FLSA. The screenings were not the principal activities the workers were employed to perform (retrieving and packaging products), and they were not integral and indispensable to those activities.

Two parts of the opinion matter for HR teams:

• "Required" is not the test. The Court said the lower court erred by focusing on whether the employer required the activity. A mandatory task can still be noncompensable, and a voluntary one can still be work.
• Efficiency arguments belong elsewhere. The Court said the fact that an employer could reduce screening time does not change the nature of the activity; that argument is for the bargaining table, not an FLSA claim.

Busk does not settle every screening scenario. Screenings that are part of the job itself, such as a safety check that is intrinsic to handling hazardous materials, can come out differently. Several states also apply their own wage laws to screening time, so confirm state rules before relying on Busk.

Are after-hours phone calls and messages compensable?

Often, yes. The Department of Labor's Field Assistance Bulletin 2020-5 says that if the employer knows or has reason to believe work is being performed, the time must be counted, and that this applies equally to work done away from the worksite. Answering a manager's text about tomorrow's schedule may be brief, but a regular pattern of late-night messages, shift swap negotiations or customer calls adds up.

The bulletin also offers a workable standard. An employer generally meets its duty of reasonable diligence by providing a reasonable process for employees to report uncompensated work time, and then paying for what is reported. It warns that the employer cannot implicitly or overtly discourage or impede accurate reporting. A supervisor who says "don't put that on your timecard" undoes the whole defense.

Controls for phones and messaging

• Set quiet hours for nonexempt staff in the scheduling or messaging app.
• Give employees an "unrecorded time" entry in the timekeeping system, with a short reason field.
• Train supervisors that a reported missed-punch or after-hours task gets approved, not challenged.
• Review message logs from company apps for after-hours activity by nonexempt users once a quarter.

If you review message logs or device activity to do this, check state notice and consent rules for employee monitoring first, and limit the review to the timekeeping question.

When does travel time count as hours worked?

Fact Sheet #22 separates three common cases. Ordinary home-to-work travel is not work time. Travel for a special one-day assignment in another city is work time, apart from the usual commute. Overnight travel away from home is work time when it cuts across the employee's workday, including on nonworking days during the hours that correspond to normal working hours. Travel between job sites during the day is generally work time as well.

The common failure is a technician who clocks in at the first customer site, even though they picked up parts at the shop first. Once the employee reports to the shop, the drive to the first site is part of the workday.

Does the de minimis rule protect small amounts of unpaid time?

Only narrowly. Under 29 CFR 785.47, employers may disregard insubstantial or insignificant periods of time beyond scheduled hours that cannot as a practical administrative matter be precisely recorded. The regulation limits this to uncertain and indefinite periods of a few seconds or minutes, justified by industrial realities, and says an employer may not arbitrarily fail to count any part, however small, of the employee's fixed or regular working time. It cites a case in which 10 minutes a day was not de minimis.

A routine five-minute pre-shift task that happens every day is recordable, so the de minimis rule is a weak defense for it. Rounding policies are a separate issue; our guide on how to calculate time clock work hours explains how recorded time turns into payable hours.

How to audit for off-the-clock risk

1. Walk the shift. Observe what employees actually do in the 15 minutes before clock-in and after clock-out at each site type.
2. Compare data sources. Badge swipes, system logins and point-of-sale openings that occur before the first punch are strong signals.
3. Interview employees privately. Ask what they do before and after the clock, and whether they have ever been told not to record time.
4. Check meal breaks. Auto-deducted meal periods paired with interrupted breaks are a frequent source of unpaid time; compare with our summary of meal and rest break laws by state.
5. Calculate exposure. Unpaid time can push weeks over 40 hours, so model overtime at the correct regular rate.
6. Fix forward and decide on back pay. Change clock placement, login sequence or task timing, and get counsel's advice on correcting past pay.

Frequently Asked Questions

Is it legal for an employee to volunteer to work off the clock?

No, not for nonexempt employees doing their regular work for a private employer. Field Assistance Bulletin 2020-5 states that an employee may not waive the right to compensation under the FLSA. If the employer knows or should know the work is happening, it must pay, and can discipline the employee for violating a timekeeping policy but cannot withhold wages.

Do we have to pay for time spent putting on uniforms or protective gear?

It depends on whether changing is integral and indispensable to the work and on where it can be done. Changing into required protective gear that must be put on at the worksite is often compensable, while putting on an ordinary uniform at home usually is not. Collective bargaining agreements and state law can change the answer, so review each job separately.

Does Busk apply under state law?

Busk interpreted the federal FLSA and Portal-to-Portal Act only. States can adopt broader definitions of hours worked under their own wage laws, and some have done so for screening time. Multi-state employers should confirm state rules before treating any screening or waiting time as unpaid.

How does unpaid time affect overtime?

Any unrecorded time is added to the week's total hours. If that pushes the week past 40 hours, overtime is owed at one and a half times the regular rate. Our explainer on the FLSA regular rate shows how bonuses and differentials change that rate.

Practical next steps

Pick your highest-risk job family, run the six-step audit, and move the clock or the login so that the first compensable task starts after the punch. Publish a simple process for reporting unrecorded time and audit supervisor approvals. For related topics, see our payroll and compliance guides. This article is general information, not legal advice.

Last reviewed: October 2026.

Sources

• Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act, U.S. Department of Labor, Wage and Hour Division
• Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), Legal Information Institute, Cornell Law School
• Field Assistance Bulletin No. 2020-5, U.S. Department of Labor, Wage and Hour Division
• 29 CFR 785.47: Where records show insubstantial or insignificant periods of time, Legal Information Institute, Cornell Law School