Paying De Minimis Overtime

How granular is the FLSA’s requirement to pay overtime?

Let’s say an employee is in the middle of editing a document for work and, rather than stopping short at 5pm, goes until 5:05. Do you have to pay time-and-a-half for those extra five minutes?

Or, what if it takes a few minutes to get through building security? May an employee punch in from the time they entered the building? What about hospital employees that need five minutes to prepare equipment or review charts: is that compensable?

It may not seem like much, but it can add up quickly. The federal Department of Labor (DOL) just released an opinion letter in May of 2026 addressing a case where, due to bottlenecks at a hospital’s timekeeping stations, each employee counted approximately 14 minutes extra per day. That’s 14 minutes at time-and-a-half, times five days a week, times 18,000 employees.

And even small employers can feel the pinch of an extra 15-30 minutes per week across their workforce. It adds up.

Those few minutes are called de minimis overtime, and raise the obvious question: Do you have to pay for that?

Baseline Rule for Maryland Overtime

As a baseline, there are two relevant laws in Maryland that govern overtime: the Maryland Wage and Hour Law (MWHL), which establishes an employer’s obligations to pay minimum wage and overtime, and the Maryland Wage Payment and Collection Law (MWPCL), which governs the timing of wage payments. Maryland law tracks the federal Fair Labor Standards Act (FLSA) requirement to pay time-and-a-half for all hours worked in excess of 40 hours per workweek. See MD Code Ann., Labor and Employment §§ 3-413, 3-415.

The Code of Maryland Regulations (COMAR) defines “hours of work” as “the time during a workweek that an individual employed by an employer is required by the employer to be on the employer's premises, on duty, or at a prescribed workplace.” COMAR 09.12.41.10A. So as a baseline, the de minimis question only begins if an employee is actually at work or on duty.

This definition does not quite cover the question at hand, however: what about those few minutes beyond the scheduled working hours? Do those count as “hours worked”?

The Federal Rule

Although the FLSA itself does not reference de minimis overtime, the Supreme Court recognized the need for a de minimis rule. See Anderson v. Mt. Clemens Pottery Company, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). This holding was later concretized in the Code of Federal Regulations, which states as follows:

[I]nsubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded...

This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked 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.

29 CFR § 785.47.

In other words, small periods of time which are truly trivial, uncertain, inconsistent, and administratively impractical to capture are non-compensable.

That is the federal rule. The next question is whether Maryland law follows it, and allows employers to disregard truly de minimis time, or whether the MWHL requires Maryland employers to pay for those minutes even when federal law would not.

Maryland’s Application of the De Minimis Rule

Two recent Maryland cases extend the federal standard to Maryland jurisprudence: Martinez and Perez.

In Martinez v. Amazon.com Services LLC, 491 Md. 38, 338 A.3d 636 (2025), Maryland’s Supreme Court formally adopted the FLSA’s framework under both the MWHL and the MWPCA, holding that Maryland law does, in fact, recognize that certain de minimis time is non-compensable. However, the court expressly left open how it is determined whether particular time is de minimis.

In other words, how many minutes may be ignored and under what circumstances?

While there is no Maryland case law addressing this question (Martinez was only issued last year), there is a Fourth Circuit case from 2011 which is likely to guide Maryland courts.

In Perez v. Mountaire Farms, 650 F.3d 350 (4th Cir. 2011), the court provided a three-part framework:

1. The practical administrative difficulty of recording the additional time;
2. The total aggregate amount of compensable time; and
3. The regularity of the additional work.

The first factor, practical difficulty, looks to such questions as what timekeeping system is in place, whether employees record their own time, whether the extra time occurs at the same point each workday, and whether the task causing the extra time is easily identifiable.

The second factor, aggregate amount of time, considers the total amount of unpaid compensable time. So, for example, in Perez, the amount at issue was ten minutes of unpaid time per day, which, for a fifty-week work year, amounted to approximately 42.5 hours per year, representing a full week’s wages at a time-and-a-half rate. The court held that number was significant enough to surpass the de minimis threshold.

The third factor, regularity, assumes that if this extra time occurs every day, at the same time each day, then it is likely to be part of an employee’s actual job, and is harder to call de minimis. This might include pre- and post-shift duties, donning and doffing protective equipment (as was the case in Perez), equipment checks, chart reviews, or recurring time spent finishing assigned tasks after a shift ends. These few minutes are treated as part of the job itself.

One last point on this: the DOL’s recent opinion letter distinguished de minimis time from a policy which rounds the extra minutes in a shift up or down. The DOL held that a rounding policy may be permissible if it is neutral on its face and neutral in practice, meaning it cuts both ways and averages out over time, and does not systematically undercompensate employees.

Conclusion

If your employees are routinely adding a few minutes here and there to pad their time sheets, chances are you have to pay time and a half for those few minutes.

Do not assume that small increments are de minimis just because they are small. If they are big enough to represent an expense you would rather avoid paying at a time-and-a-half rate, then they are probably compensable; de minimis means truly trivial time.

Employers should treat recurring off-the-clock minutes as a workplace-management issue. Require employees to report all time worked accurately, adopt clear rules against unauthorized pre-shift or post-shift work, and enforce those rules consistently and evenhandedly.

If you need help drafting a compliant policy or deciding how to address recurring de minimis time in your workplace, send an email to aj@luchanskylaw.com and we’ll help you work through it.