DOL Issues New Opinion Letters: Major Wins for Employees on Off-the-Clock FLSA Claims

On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division issued a significant opinion letter, FLSA2026-8, that delivers clear, practical guidance on one of the most frequent sources of wage-and-hour disputes: off-the-clock work performed before and after paid shifts.

For California workers who must don and doff protective gear or perform integral safety-related tasks each day, this letter is a powerful new tool. It reinforces that employers cannot simply ignore minutes of required work simply because they fall outside the official shift schedule.

The opinion letter arose from a hospital setting but applies directly to any workplace where employees perform essential pre- and post-shift activities. The DOL reached three key conclusions:

• Integral and indispensable pre-shift activities are compensable. Equipment preparation, safety checks, gear donning, briefings, and similar tasks that are intrinsic to performing the job safely and effectively must be counted as hours worked.
• Regular, predictable short periods of work are not “de minimis.” Employers may not rely on the de minimis doctrine to avoid paying for daily, recurring time that, while brief on an individual level, becomes substantial when aggregated across the workforce.
• Rounding policies must actually be neutral. Any timekeeping practice that systematically favors the employer—such as rounding early clock-ins to the scheduled start time while employees are already performing compensable work—violates the FLSA.

Strong Support for Compensibility of Public Safety Employees' Pre and Post Shift Activitie

Public safety employees who perform pre-shift equipment and vehicle checks, participate in shift exchanges and information handoffs, or complete report writing now have fresh authority confirming that this time is compensable. The same holds true for post-shift activities such as washing and storing gear and equipment. This letter sports the position that these tasks are not incidental, but rather essential to the safe and effective performance of public safety duties.

The letter is equally important for private-sector employees in industries that require the donning and doffing of personal protective equipment (PPE) or similar pre- and post-shift preparations. Workers in refineries, manufacturing, processing, construction, and other danagerous environments routinely spend several minutes each shift on these integral activities. FLSA2026-8 directly supports claims that this time must be compensated and undermines common employer defenses based on de minimis time or one-sided rounding policies.

Practical Implications for Unions and Members

This opinion letter is an official agency interpretation which are often given persuasive weight by the courts. The Opinion provides support for claims challenging:

• Unpaid pre- and post-shift donning/doffing time;
• Rounding practices that systematically reduce compensable hours; and
• Employer attempts to dismiss recurring short periods of required work as insignificant.

If a department or workplace uses automated time clocks, early-arrival buffers, or expects “voluntary” pre-shift preparation, it is worth reviewing those practices against the standards articulated in FLSA2026-8.

Third Circuit Limits FLSA “Gap Time” Claims for Straight Time Pay

Public safety unions and their members have long relied on the Fair Labor Standards Act to recover unpaid straight-time wages, often called “gap time”, in weeks when officers or firefighters work overtime. Last week’s Third Circuit decision in Secretary of Labor v. Comprehensive Healthcare Management Services LLC, No. 24-2842 (3d Cir. June 4, 2026), changes the landscape in that circuit. It does not, however, close the door for California’s law enforcement and fire professionals. In fact, Ninth Circuit precedent and California wage-and-hour laws continue to provide a pathway for pursuing gap time claims.

The Third Circuit Ruling

In a 2-1 decision, the Third Circuit ruled that the FLSA provides no private right of action for “overtime gap time” claims, i.e. unpaid straight-time hours worked below the 40-hour threshold in weeks that also include overtime. The court joined the Second Circuit in holding that the FLSA’s text addresses only minimum-wage violations and overtime premiums. It does not create a standalone federal remedy for unpaid straight-time wages in overtime weeks, even though the Department of Labor’s interpretive guidance (29 C.F.R. § 778.315) suggests otherwise. The panel majority emphasized statutory silence: Congress spoke clearly on minimum wage and overtime but remained silent on gap time.

The practical effect outside the Fourth Circuit, which reached the opposite conclusion in 2022, is a narrowing of federal damages. Plaintiffs in the Third and Second Circuits will increasingly turn to state wage-payment laws, exactly as the Third Circuit itself acknowledged.

How This Ruling Contrasts With Ninth Circuit Authority 

California public safety officers and firefighters operate under the Ninth Circuit’s precedent in Adair v. City of Kirkland, 185 F.3d 1055 (9th Cir. 1999), and its unpublished 2001 memorandum decision. In Adair, the court expressly noted that it was “not clear that a gap time claim may be asserted under the FLSA” standing alone, but it simultaneously held that the FLSA requires all straight-time compensation due for non-overtime hours to be paid before any overtime premium can be considered properly calculated. The court directly cited 29 C.F.R. § 778.315 for that proposition.

Crucially, the 2001 memorandum decision clarified that the officers’ overtime gap time claims were not waived or barred by the earlier ruling on pure gap time. The Ninth Circuit left those claims open, in stark contrast to the Third Circuit’s definitive rejection.

This distinction is crucial. When an officer or firefighter brings an off-the-clock claim in the Ninth Circuit, counsel can still argue that unpaid straight-time hours in overtime weeks render the employer’s overtime premium non-compliant under the FLSA’s regular-rate requirements. That argument remains viable here depsite the Third Circuit’s decision.

California State-Law Protections Provide Additional, Often Stronger, Safeguards

Public employees in California also enjoy robust protections that operate independently of the FLSA:

• California Minimum Wage Claims. CA Public employees may pursue unpaid straight-time wages as violations of the California minimum wage (currently $16.50 per hour for most employers, with local variations). These claims are not subject to the same federal limitations the Third Circuit imposed.
• Collective Bargaining and Interest Arbitration. In the public labor relations context, many Memoranda of Understanding (MOUs) contain “pay all hours worked” or “no off-the-clock work” provisions. These contractual obligations are routinely enforced through grievance arbitration and can be leveraged in interest arbitration to secure stronger wage-recovery language.

California overtime claims under state law remain difficult for most public employees because of exemptions. That reality only increases the difficulty of preserving straight-time gap claims, whether framed as a precureser to full payment of FLSA overtime or under California's minimum-wage statutes.

NY Holds Law Enforcement Agencies Must Meet and Confer Over Advance Notice and Opportunity to Be Heard Before Releasing Personnel Records

In a decision carrying substantial weight for California public safety employers, the New York Public Employment Relations Board has ruled that municipalities violated their duty to bargain when they refused to negotiate procedures providing officers with advance notice of records requests and a meaningful opportunity to review and object prior to disclosure. In the Matter of Albany Police Supervisors’ Association, Inc. v. City of Albany, 58 PERB ¶ 3037 (2025). Although arising under New York’s Freedom of Information Law following the repeal of Civil Rights Law § 50-a, the holding offers persuasive authority regarding the parallel obligations imposed on California agencies by Penal Code section 832.7, as significantly expanded by Senate Bill 1421 and Senate Bill 16.

The New York unions demanded bargaining over the impact of the legislative changes. They proposed specific procedures requiring notification to affected officers upon receipt of a request, provision of copies of the records intended for release, and an opportunity to submit objections before any disclosure. When the municipalities declined to bargain, claiming the subject was non-negotiable and that negotiations would impair statutory response deadlines, the unions filed improper practice charges. The New York PERB affirmed the finding of a violation in full.

The Board held that while the decision to comply with disclosure mandates is not subject to bargaining, the implementation of those mandates, including pre-disclosure notification and review mechanisms, constitutes a mandatory subject of negotiation. It rejected claims of preemption, finding no clear legislative intent to exclude the issue from collective bargaining. The Board further noted the absence of evidence that such procedures would prevent timely compliance, and it recognized the direct and significant impact of record disclosure on officers’ reputations, safety, and employment prospects. These effects, the Board concluded, trigger the obligation to bargain over reasonable protective measures.

This analysis likely applies equally to California’s public employee labor relations statutes, such as the Meyers-Milias-Brown Act. Public employers in this state are required to meet and confer in good faith regarding the effects of non-negotiable statutory mandates that materially affect terms and conditions of employment. The discretionary decisions inherent in implementing SB 1421 and SB 16 disclosures, particularly those involving timing, redactions, and officer notification, plainly fall within this duty. Advance notice and an opportunity to be heard enable officers to address potential inaccuracies or propose appropriate redactions, thereby mitigating adverse impacts without compromising statutory transparency requirements.

Consequently, California public safety labor organizations should promptly demand to bargain over pre-disclosure procedures whenever agencies adopt or revise protocols for handling SB 1421 and SB 16 requests. Where employers refuse such demands, the refusal may constitute an unfair labor practice. The memorandum of understanding can set forth negotiated protections for represented officers, ensuring they receive timely notice and a genuine opportunity to be heard before sensitive records are released to the public.

PERB Draws a Firm Line on Severance Petitions: Two Recent Decisions Confirm Limits on Transferring Employees to Existing Units and Strict Window-Period Rules

In two significant decisions issued weeks apart, the Public Employment Relations Board has provided clear and consequential guidance on the proper use of severance petitions under the Meyers-Milias-Brown Act and the Educational Employment Relations Act. In Fresno Unified School District (PERB Dec. No. Ad-531, July 28, 2025) and City and County of San Francisco (PERB Dec. No. Ad-532-M, August 27, 2025), PERB reaffirmed longstanding principles governing severance while rejecting attempts to use the procedure as a vehicle for transferring classifications from one existing bargaining unit into another. The decisions underscore the Board’s commitment to preserving bargaining-unit stability and enforcing the contract-bar doctrine and window-period requirements with precision.

In Fresno Unified, the International Association of Machinists and Aerospace Workers initially petitioned to sever the Roofers and Lead Roofers classifications from a larger building-trades unit represented by the Fresno Teachers Association. After the initial petition was deemed timely, the petitioner filed an amended petition seeking instead to place those classifications directly into an existing IAMAW-represented unit. 

In San Francisco, the San Francisco Deputy Sheriffs’ Association filed a severance petition seeking to remove Medical Examiner’s Investigators and Institutional Police Officers from Service Employees International Union Local 1021 units and place them into the DSA’s existing bargaining unit. When the Office of the General Counsel questioned the propriety of that approach, the DSA filed an amended petition proposing a new standalone unit consisting solely of the affected classifications. In both matters, the incumbent unions opposed the petitions, and PERB ultimately ruled against the petitioners’ attempts to achieve through amendment what the regulations do not permit.

The Board’s reasoning in each decision rests on the plain language and historical purpose of the severance regulations. Under PERB Regulation 33700 (applicable to EERA cases such as Fresno) and the parallel provisions governing MMBA cases, a severance petition is designed to create a new, standalone bargaining unit consisting exclusively of the employees being severed from a larger existing unit. The regulations do not authorize the transfer of employees or classifications from one represented unit into a different, already-established unit. PERB emphasized that the phrase “consisting of” in the regulatory text operates as a term of limitation, not an invitation to add employees to an unrelated unit. This interpretation aligns with decades of precedent distinguishing severance from unit-modification procedures and with the fundamental goal of the contract-bar doctrine: promoting stability in established bargaining relationships.

Equally important is the Board’s treatment of amendments filed outside the statutory window period. Both decisions confirm that a severance petition—or any amendment to such a petition—must be filed during the defined window period (the 29-day period beginning 120 days and ending 91 days before the expiration of the governing memorandum of understanding) whenever a memorandum of understanding is in effect. Material changes to the petition, such as shifting from an attempt to join an existing unit to the creation of a new standalone unit, cannot be treated as mere technical corrections. The Board rejected arguments that more general amendment provisions applicable to certification petitions override the specific timing restrictions imposed on severance petitions. In the San Francisco case, PERB expressly held that the more specific regulation governing severance controls. In Fresno Unified, the Board similarly concluded that the attempted amendment fundamentally altered the nature of the petition and therefore could not cure the original defect.

For California public safety unions, these rulings carry immediate and strategic significance. Deputy sheriffs’ associations, police officers’ organizations, and other safety-employee representatives frequently confront situations in which specialized classifications—such as institutional police, medical examiner investigators, or other public-safety-adjacent roles—may appear better suited to a dedicated safety-focused unit. The decisions make clear that severance is not a shortcut for reassigning such classifications to an existing unit. Instead, any effort to sever must be framed from the outset as the creation of a new, independent bargaining unit consisting solely of the employees being carved out. Unions contemplating such action must therefore conduct a thorough community-of-interest analysis demonstrating that the severed group shares distinct interests that cannot be adequately addressed within the larger unit. They must also time the filing precisely within the applicable window period and ensure that any subsequent amendments do not introduce material changes that would render the petition untimely.

The rulings also serve as a cautionary reminder about the perils of attempting to cure procedural defects through late amendments. Public unions should treat the window period as inviolate and should file only those severance petitions that are fully formed and compliant at the time of submission. Where an initial petition contains a fatal flaw, such as an improper request to transfer employees into an existing unit, the proper course is not to amend but to allow the defective petition to be dismissed and to refile a new, compliant petition when the next window period opens. This disciplined approach preserves credibility with PERB and avoids the risk of prolonged litigation over timeliness and procedural compliance.

Notwithstanding the procedural hurdles, these decisions do not foreclose legitimate severance efforts. The Board in Fresno Unified expressly remanded the matter for processing of the original petition, which had properly sought creation of a new standalone unit. Public safety unions may therefore continue to pursue severance where the facts support a distinct community of interest and where the procedural requirements are strictly observed. In appropriate cases, such petitions can strengthen representation for specialized safety classifications and enhance the ability of unions to address the unique concerns of their members.

Taken together, Fresno Unified and San Francisco reinforce PERB’s commitment to orderly representation processes and stable collective-bargaining relationships. Public unions would be well advised to review pending or contemplated severance initiatives in light of these holdings. By filing only fully compliant petitions within the prescribed window periods and by framing severance requests as the creation of new, standalone units, unions can protect their procedural rights and advance the interests of their members without inviting dismissal or protracted appeals. The decisions underscore the continuing importance of meticulous preparation and strategic timing in representation matters affecting California’s public safety workforce.

Third District Court of Appeal Upholds Arbitrator’s Authority to Offset Discipline Sustained by the State Personnel Board in Retaliation Grievance

In a decision of considerable practical significance for California public employee unions and their members, the Court of Appeal for the Third Appellate District has reversed a trial court judgment that had limited an arbitrator’s remedial powers under a memorandum of understanding. The published opinion in Department of Human Resources v. California Correctional Peace Officers Association (2026 WL 1361422, filed May 15, 2026) clarifies that an arbitrator authorized to exercise the remedial authority of a Public Employment Relations Board ("PERB") administrative law judge may order rescission of a suspension previously upheld by the State Personnel Board, together with make-whole relief, where the award rests on a finding of retaliation for protected union activity rather than an attempt to supplant the SPB’s review on the merits. The ruling therefore preserves the vitality of concurrent or sequential grievance arbitration as a meaningful avenue for vindicating rights under the Ralph C. Dills Act even after the SPB has sustained discipline for cause.

Factual Background and Procedural History

Tracylyn Lopez, a correctional officer and CCPOA job steward at Salinas Valley State Prison, received a notice of adverse action for using profanity toward two fellow officers. After that matter was settled with a letter of reprimand, Lopez posted excerpts of the disciplinary materials on a union bulletin board visible to inmate workers, highlighting the surnames of the officers who had reported her. CDCR imposed a 60-workday suspension, which the SPB ultimately upheld on the ground that the posting promoted a “code of silence” and constituted inexcusable neglect of duty and failure of good behavior under Government Code section 19572, subdivisions (d) and (t).

Separately, Lopez filed a contractual grievance alleging that the suspension violated section 5.03 of the applicable MOU, which incorporates the Dills Act’s prohibitions on retaliation for protected union activity. CCPOA pursued the grievance to arbitration. The arbitrator found that CDCR had retaliated against Lopez for engaging in protected speech and representational activity, that the posting itself was not so opprobrious as to lose protection, and that CDCR failed to prove it would have imposed the same penalty absent the protected conduct. The arbitrator therefore ordered CDCR to rescind the notice of adverse action for the posting and to make Lopez whole through backpay and restoration of benefits and rights.

CDCR petitioned the superior court to vacate or correct the award, arguing that the arbitrator had exceeded her powers by interfering with the SPB’s constitutional authority to review disciplinary actions and by undermining public policy against the code of silence. The trial court denied the petition to vacate but granted the petition to correct, striking the provisions directing rescission and make-whole relief. CCPOA appealed.

The Court of Appeal’s Analysis

The Third District began from the well-established principle that judicial review of labor arbitration awards is extremely narrow, particularly in the public employment sector where strong policies favor collective bargaining and the finality of arbitral awards. An arbitrator exceeds her powers only in limited circumstances, including where the award violates an unwaivable statutory right or contravenes an explicit legislative expression of public policy. The public policy exception itself demands a two-part inquiry: identification of an explicit, clear, or well-defined and dominant expression of policy, followed by a determination that the award itself, not merely the underlying conduct, conflicts with that policy.

Applying this framework, the court concluded that the SPB’s constitutional authority under article VII, section 3, subdivision (a) to “review disciplinary actions” constitutes an explicit expression of public policy. Yet the arbitrator’s award did not contravene that policy. The SPB had reviewed the suspension for cause under the Civil Service Act and the merit principle; the arbitrator had examined whether the same discipline constituted retaliation for activity protected by the Dills Act and the MOU. These inquiries, while overlapping factually, are legally distinct. The SPB did not address the Dills Act claim, and the arbitrator did not purport to review or reverse the SPB’s determination on the merits. Instead, the award offset the suspension by providing a contractual remedy for the separate violation. Because enforcing one determination did not require violating the other, no inherent conflict arose.

The court similarly rejected the argument that the award undermined legislative and agency policies aimed at combatting the code of silence. While that policy is undoubtedly important, it does not mandate any particular length of suspension or preclude an arbitrator from finding that discipline was imposed for retaliatory reasons and ordering appropriate contractual relief. The award itself therefore did not conflict with an explicit expression of public policy.

Implications for PERB Retaliation Charges and Disciplinary Appeals Involving Overlapping Circumstances

This precedent confirms that civil service discipline and public sector retaliation claims (including those filed before PERB) proceed on separate but compatible tracks. An adminsitrative appeal ruling upholding discipline for cause does not, standing alone, preclude a finding from PERB (or an arbitrator in a grievance) that the same discipline violated a public sector labor statue (such as the MMBA or the Dills Act) or an MOU. PERB or the arbitrator can also order rescission and make-whole relief, notwithstanding the outcome of the disciplinary appeal. The appellate court noted that an award that offsets rather than purports to reverse or veto the SPB decision survives review and avoids the concerns raised in earlier authority such as State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512. Public sector unions may therefore pursue grievances and PERB unfair practices charges in appropriate cases without a favorable award automatically being judicially nullified on public policy grounds.

The decision also underscores the importance of preserving evidence of retaliatory motive and protected activity throughout the disciplinary process. Where emails, timing, or disparate treatment suggest anti-union animus, a well-developed record can support an offsetting remedy even after the disciplinary action has been upheld in the administrative appeal.  

Considerations for POST Decertification Proceedings Under Senate Bill 2

It is important to distinguish the framework addressed in this case from the decertification process established by Senate Bill 2. Under that statutory scheme, the Commission on Peace Officer Standards and Training, through its Peace Officer Standards Accountability Division, conducts an independent investigation into allegations of serious misconduct as defined in Penal Code section 13510.8. The Commission applies a clear and convincing evidence standard, higher than the preponderance standard that typically governs most disciplinary appeal proceedings, and its review of the entire record is not automatically constrained by prior agency or arbitral findings.

A sustained finding against an officer in a disciplinary appeal or arbitration does not, by itself, relieve POST of its obligation to satisfy this heightened evidentiary threshold. POST remains required to prove its case independently under the clear and convincing standard, even where the SPB, a local civil service commission or an arbitrator has already found misconduct.

It bears repeating that the appellate case involved distinct legal questions: whether discipline was supported by cause under the Civil Service Act, on the one hand, and whether that same discipline constituted unlawful retaliation for protected activity under the Dills Act and the MOU, on the other. By contrast, a POST decertification proceeding under Senate Bill 2 will ordinarily address substantially the same legal question presented in the underlying disciplinary appeal, namely, whether the officer engaged in the alleged serious misconduct, albeit under the heightened clear and convincing evidence standard rather than the preponderance standard typically applied in disciplinary appeals. This distinction between overlapping versus distinct legal inquiries helps explain why the Court of Appeal found no public policy conflict in the arbitration award, while also illuminating why a favorable determination in a disciplinary proceeding may carry greater preclusive potential in a subsequent decertification matter.

By contrast, a favorable factual or legal determination rendered in favor of the officer in the disciplinary appeal on the same serious misconduct allegations could in appropriate circumstances give rise to collateral estoppel or res judicata. Where the traditional elements are satisfied, including identity of issues and sufficient privity between the employing agency and the Commission, such a finding may preclude POST from relitigating those matters in a subsequent decertification proceeding. 

Conclusion

In light of this authority, an unsuccessful disciplinary appeal before the State Personnel Board does not preclude parallel unfair practice litigation. PERB would likely not be precluded from reviewing an upheld disciplinary action for unlawful retaliation under the MMBA, Dills Act, or other labor statute, nor would it be restricted in fashioning appropriate remedies for such violations. The Third District’s opinion represents a meaningful affirmation that carefully framed awards addressing retaliation will withstand judicial scrutiny.