DOL Issues Four New FLSA Opinion Letters

The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued four new opinion letters addressing common wage and hour compliance questions under the Fair Labor Standards Act (FLSA). The opinion letters, issued on May 28, 2026, address dual-role exempt employees, bonus calculations, unpaid meal periods, pre-shift work, de minimis time, and time-rounding practices. The DOL announced that the letters are intended to promote clarity, consistency, and transparency in the application of federal wage and hour standards.

Opinion letters are official written interpretations from WHD that explain how federal wage and hour laws apply to specific factual circumstances. While they are fact-specific, they may provide helpful compliance guidance for employers facing similar wage and hour issues.

FLSA2026-5: Exempt Employees Performing Additional Hourly Work

FLSA2026-5 considers whether an employee who is exempt under Section 13(a)(1) of the FLSA may also perform additional work in a secondary, non-exempt role and receive hourly compensation for that work.

In the facts presented, an academic medical center classified certain nursing professional development specialists as exempt and paid them on a salary basis. These employees also occasionally picked up additional weekend shifts as staff nurses, a non-exempt role, and were paid an hourly rate for that extra work.

WHD concluded that the additional hourly work did not, by itself, destroy the employee’s exempt status, provided that the employee’s primary duty remained exempt work and the salary-basis and salary-level requirements continued to be satisfied.

Key Takeaway for Employers

Employers may, in appropriate circumstances, allow exempt employees to perform additional work in a secondary hourly role without automatically creating overtime obligations. However, this arrangement should be carefully reviewed. Employers should ensure that:

• The employee’s primary duty remains exempt work;
• The employee continues to receive a guaranteed salary that satisfies FLSA requirements;
• Any additional compensation is structured as permissible additional pay; and
• The employee’s non-exempt duties do not become the employee’s primary duty over time.

If the employee’s primary duty shifts to non-exempt work, overtime may need to be calculated based on the employee’s combined hours and compensation for both roles.

FLSA2026-6: Bonus Programs and Overtime Calculations

FLSA2026-6 addresses whether a quarterly bonus calculated by comparing an employee’s total straight-time and overtime earnings to the total earnings of all bonus-eligible employees qualifies as a “percentage of total earnings” bonus under 29 C.F.R. § 778.210.

WHD concluded that, under the facts presented, the bonus formula provided simultaneous payment of any overtime compensation due on the bonus. As a result, the employer did not need to recompute the regular rate or pay additional overtime when the bonus was paid.

WHD explained that, for most nondiscretionary bonuses, employers must include the bonus in the regular rate and calculate any additional overtime due. However, a true percentage-of-total-earnings bonus may already include the required overtime premium because it increases both straight-time and overtime earnings by the same percentage.

Key Takeaway for Employers

Employers should review bonus plans to determine whether bonuses must be included in the regular rate for overtime purposes. A bonus may avoid the need to recalculate overtime later, but only if it is properly structured as a percentage of total earnings and does not reduce overtime compensation.

Employers should confirm that:

• The bonus formula includes both straight-time and overtime earnings;
• The formula is applied consistently;
• Excludable payments, such as discretionary bonuses or expense reimbursements, are not improperly included in the calculation; and
• The plan is not designed in a way that reduces the value of overtime compensation.

FLSA2026-7: Meal Periods and Time Spent Leaving the Worksite

FLSA2026-7 considers whether time spent walking across an employer’s premises and passing through controlled access points during an unpaid meal period is compensable when employees voluntarily leave the premises during a 30-minute meal break.

WHD concluded that the meal period was a bona fide, non-compensable meal period because the employee was relieved from duty and had enough time to use the break on-site for eating or personal activities. The fact that leaving the premises reduced the amount of time available for an off-site meal did not make the meal period compensable.

WHD emphasized that the FLSA generally does not require employers to provide meal periods, and when a meal period is provided, it is not necessary for employees to be permitted to leave the premises if they are freed from work duties during the meal period.

Key Takeaway for Employers

Employers may treat a 30-minute meal period as unpaid if employees are fully relieved from duty and able to use the time for a meal or personal activities. Employers are not required under the FLSA to extend the meal period to account for an employee’s voluntary choice to leave the premises.

However, employers should ensure that meal periods are not interrupted by work duties. If employees are required to remain available, respond to work communications, perform tasks, or are otherwise not fully relieved from duty, the meal period may become compensable.

FLSA2026-8: Pre-Shift Work, De Minimis Time, and Rounding Practices

FLSA2026-8 addresses hospital timekeeping practices, including whether certain pre-shift activities are compensable, whether the de minimis doctrine may apply, and whether rounding early clock-ins to the scheduled shift start time is permissible.

WHD concluded that some pre-shift activities, such as receiving handoff reports, locating work assignments, and completing certain documentation, may be compensable if they are integral and indispensable to the employee’s principal job duties. In contrast, time spent waiting in line to clock in or out generally is not compensable when it occurs before the first principal activity or after the last principal activity of the workday.

WHD also cautioned that regularly performed pre-shift compensable work is unlikely to qualify as de minimis, particularly where electronic timekeeping systems can track time with precision.

Finally, WHD stated that a rounding practice that only rounds early clock-ins forward to the scheduled start time may be non-neutral if employees are performing compensable work during that rounded-away time. Rounding practices must be neutral on their face and in practice, and they must not systematically undercompensate employees over time.

Key Takeaway for Employers

Employers should:

• Identify whether pre-shift tasks are integral and indispensable to the employee’s principal duties;
• Pay for compensable work that the employer knows or has reason to know is being performed;
• Avoid relying too broadly on the de minimis doctrine for recurring pre-shift work;
• Audit rounding practices to ensure they are neutral and do not consistently benefit the employer; and
• Enforce clear policies prohibiting unauthorized off-the-clock work while maintaining a process for employees to report all time worked.

Staying Current on FLSA Compliance

The recent opinion letters reinforce that FLSA compliance is highly fact-specific and often turns on how pay practices, scheduling procedures, and timekeeping rules operate in practice. While opinion letters are limited to the facts presented, they can be useful indicators of how the Wage and Hour Division may analyze similar wage and hour issues.

Employers should continue to monitor DOL guidance and periodically review wage and hour practices against current federal, state, and local requirements. The DOL maintains a searchable library of FLSA opinion letters, which employers may use to review prior agency interpretations. The DOL also offers an FLSA elaws Advisor, including the FLSA Overtime Security Advisor and Overtime Calculator Advisor, which can help employers evaluate exemption status and overtime obligations.

Because these issues are often fact-dependent, employers should work with employment counsel or a qualified wage and hour advisor before making changes to exemption classifications, bonus structures, meal period practices, or timekeeping procedures.