The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued several opinion letters addressing recurring compliance questions regarding the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).
While opinion letters do not carry the same weight as law, they serve as a vital tool for the WHD to provide practical answers on how wage and hour laws apply to specific workplace scenarios. These letters offer stakeholders clarity on their rights and obligations under the statutes enforced by the division.
Below is a summary of the key clarifications and their impact on employer compliance.
Fair Labor Standards Act (FLSA) Guidance
The WHD addressed four distinct scenarios regarding exemptions, overtime calculations, and compensable time under the FLSA.
- FLSA2026-1: Learned Professional Exemption. The DOL reaffirmed that social workers with master’s degrees generally meet the criteria for the learned professional exemption. However, the agency clarified that the FLSA does not mandate that employers classify these employees as exempt. Employers retain the flexibility to voluntarily reclassify eligible employees as non-exempt, provided they comply with minimum wage and overtime requirements.
- FLSA2026-2: Discretionary Bonuses. To exclude a bonus from the regular rate of pay for overtime purposes, it must meet strict statutory criteria: it must be fully discretionary, determined near the end of the period, and not implied or promised in advance. Bonuses tied to performance, attendance, or productivity generally fail this test and must be included in overtime calculations.
- FLSA2026-3: Mandatory Roll Call Time. The DOL determined that mandatory pre-shift roll calls constitute “hours worked.” Generally, employers cannot exclude this time from compensation, even if a collective bargaining agreement states otherwise. Limited exceptions exist for certain union contracts under Sections 7(b)(1) and 7(b)(2), but only if strict conditions regarding hour caps and overtime protections are met.
- FLSA2026-4: Commissioned Employee Exemption. Clarification was provided regarding the Section 7(i) exemption for commissioned employees. The exemption eligibility is calculated based on the federal minimum wage, even in states with higher minimum wages. To qualify, the employee’s regular rate must exceed 1.5 times the federal minimum wage, and more than 50 percent of their compensation must come from commissions.
Family and Medical Leave Act (FMLA) Clarifications
The recent opinion letters also provided necessary guidance on FMLA usage regarding school closures and medical travel.
- FMLA2026-1: School Closures. The DOL clarified that the calculation of FMLA leave during a partial-week school closure depends entirely on the type of leave taken. For employees on an intermittent or reduced schedule, any day the school is closed do not count against their FMLA entitlement because they were not scheduled to work those days. Conversely, if an employee takes a full workweek of FMLA leave, a partial-week closure is treated like a holiday and does not reduce the total week deducted from their balance.
- FMLA2026-2: Travel Time to Appointments. It was confirmed that FMLA leave covers time spent traveling to and from medical appointments for serious health conditions or family care. This travel is considered part of obtaining treatment or diagnosis. Employers should note that medical certifications do not need to explicitly specify travel time for the leave to be valid.
The DOL also released seven FMLA videos that address common questions and provide clear guidance on leave requirements.
Next Steps for Employers
Although opinion letters are fact-specific, they provide valuable insight into how the DOL interprets current regulations. To ensure compliance, employers should consider the following steps:
- Review Compensation Structures: Audit bonus programs and commission-based pay plans to ensure they align with the “regular rate” requirements and Section 7(i) requirements.
- Assess Timekeeping Practices: Ensure that mandatory activities, such as roll calls, are being captured as compensable hours worked.
- Update Leave Tracking Procedures: Adjust FMLA tracking mechanisms to correctly account for intermittent leave during school closures and acknowledge travel time as protected leave.
- Consult Legal Counsel: Because these opinion letters apply to specific facts, employers are encouraged to consult with legal counsel to determine how these interpretations apply to their unique operational realities.
