DOL Issues 4 Opinion Letters
On May 29, 2026, the U.S. Department of Labor’s Wage and Hour Division (“Division”) released four new opinion letters applying federal wage and hour law to employers’ fact specific questions. These opinion letters offer guidance on complicated legal principals. They are helpful tools for employers looking to learn or refresh basic principles while gaining actual application knowledge on challenging wage and hour nuances. If you have questions about these opinion letters, please contact a KZA attorney.
FLSA2026-5 addresses whether an exempt employee can perform additional work in a secondary, nonexempt role at an hourly rate without losing the overtime exemption. Here, salaried exempt employees often picked up one or two 12-hour nonexempt nursing shifts on weekends for which they were paid hourly. Because they spent at least 40 hours each week working in their exempt capacity and only 12-24 hours each week working in the nonexempt nursing role, their primary duty remained the nonexempt work. Additionally, because they received their full salary each week regardless of hours worked and the hourly wages earned in the nursing role supplemented their compensation, the employer also preserved the salary requirement of the overtime exemption.
FLSA2026-6 discusses nondiscretionary bonuses and the Division’s “longstanding recognition that a bonus that increases an employee’s total earnings by a fixed percentage ‘increases both straight time and overtime wages by the same percentage, and thereby includes proper overtime compensation as an arithmetic fact.’” The Division reviewed different ways to calculate a total earnings bonus and explained an employer must ensure the total earnings includes straight-time earnings and overtime earnings.
FLSA2026-7 addresses whether employees are free from work duties during their 30-minute meal period even though it may take 10 minutes or more to get to the parking lot and through security to leave and return from the break. The Division confirmed “its longstanding position that requiring an employee to remain on the employer’s premises does not convert a meal period into compensable working time.” Under this principle, an employee’s choice to leave the employer’s property for a meal period does not render the time compensable even though a portion of the time is consumed with navigating out of and into the workplace. Because the employees are relieved of duties during the meal period and the time is predominantly for their benefit, the meal period is not compensable without regard to whether the employees choose to leave the employer’s premises for the break.
FLSA2026-8 dives into compensable time issues by looking at pre-shift activities of hospital employees and the rounding policy used for time keeping purposes. The Division explained that while some of the pre-shift activities, like waiting in line to clock in and out, are not compensable, others appeared integral and indispensable to the principal job duties (and thus compensable), such as equipment preparation, chart review, and receiving patient reports. The Division further considered whether employees were performing compensable work during any time that is regularly lost to the employer’s rounding policy. Here, the Division found that compensable pre-shift activities performed at the beginning of each workday after employees clocked in early were routinely unpaid because the time was always rounded to the shift start time. The Division explained that a rounding practice must operate neutrally such that it does not systematically undercompensate employees for hours worked.
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