On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division (“Department” or “DOL”) issued four opinion letters addressing a range of compensation and timekeeping issues under the Fair Labor Standards Act (“FLSA”). The Department issued these letters – FLSA2026-5, FLSA2026-6, FLSA2026-7, and FLSA2026-8 – as part of its revitalized opinion letter program, which Acting Secretary of Labor Keith Sonderling relaunched last June.
Opinion letters are official written interpretations from the Division that explain how laws apply to specific factual circumstances presented by individuals, employers, or organizations. Under federal law, employers can rely on these opinion letters in their interpretation of FLSA requirements, and employers who face a claim for failure to pay minimum wage or overtime compensation can use compliance with the opinion letters to establish they acted in good faith. See Section 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 259.
The following summarizes each letter and highlights practical considerations for employers considering this guidance.
Opinion Letter FLSA2026-5: Exempt Employees Performing Additional Non-Exempt Work
Background
This letter addresses whether an employee who is exempt under section 13(a)(1) of the FLSA can perform additional work in a secondary, non-exempt role at an hourly rate without losing exempt status or triggering overtime obligations. A non-profit hospital raised the issue regarding its nursing education specialists, who were salaried exempt employees, when they pick up additional hourly non-exempt nursing shifts on weekends.
Conclusion: Exempt Status Based on Employee’s Primary Duties
The DOL concluded that, under the circumstances presented, the performance of additional non-exempt work at an hourly rate is “insufficient to alter the employee’s exempt status under the FLSA as long as the employee’s primary duty remains the performance of exempt work and the salary requirements continue to be met.” The DOL also found that paying additional hourly compensation for work in a secondary non-exempt role does not violate the salary basis requirement because 29 C.F.R. § 541.604(a) expressly permits “additional compensation” on any basis for work beyond the normal workweek.
The DOL’s opinion means that:
- performing a non-exempt role alongside a primary, exempt role does not alone eliminate an employee’s exempt status for the primary role, provided that the employee’s primary duties remain the performance of exempt work; and
- to maintain exempt status, the employee must spend the substantial majority of their time performing exempt duties.
Employer Takeaways
This letter is a useful reference point for employers that allow exempt employees to voluntarily pick up non-exempt shifts. Employers may structure dual-role arrangements, paying exempt employees additional hourly compensation for picking up shifts or projects in non-exempt capacities, without jeopardizing the exemption, so long as the primary duty and salary requirements remain satisfied. Employers should document the primary duty analysis and bring any questions about the classifications to their attorney. It is also a good idea to periodically review the duties of a given employee to confirm that the exempt role clearly remains the primary duty, or whether the balance of exempt and non-exempt work has shifted over time, which could change the analysis.
Opinion Letter FLSA2026-6: Bonus Payments and Regular Rate Calculations
Background
An employer paid a quarterly bonus by dividing each eligible employee’s total straight-time and overtime earnings by the total earnings of all participants in the bonus pool, then multiplying that percentage by the available bonus pool. The DOL examined whether this “percentage of total earnings” bonus structure satisfies the FLSA’s overtime requirements without requiring employers to conduct a retroactive overtime recalculation of the regular rate of pay for each workweek covered by the bonus.
Conclusion: Percentage of Total Earnings Bonus Structure Acceptable
The DOL found that the described payment structure satisfies the FLSA’s overtime requirements because the bonus increases both straight-time and overtime earnings proportionally. The letter reaffirms that, pursuant to 29 C.F.R. § 778.210, a non-discretionary bonus increasing an employee’s earnings by a fixed percentage already includes the overtime premium attributable to it, so no retroactive recalculation of the regular rate is required when the bonus is paid.
The letter outlines permissible methods for calculating total earnings bonuses: (1) directly applying a percentage to an employee’s total straight-time and overtime earnings regardless of how much the employee earns in comparison to other employees; (2) comparing an employee’s earnings to those of all other employees participating in the bonus pool; and (3) dividing the bonus pool amount by the participating employees’ total earnings and multiplying that percentage by each employee’s total earnings to determine the bonus payout. The letter also identifies additional factors that employers may consider, such as seniority, work location, job title, base pay, performance, or conduct.
Lastly, the letter cautions that employers may not use this structure to evade overtime requirements (such as where the percentage decreases in proportion to overtime hours), may not apply a higher percentage increase to straight-time earnings than to overtime earnings, and may not include items previously excluded from the regular rate when calculating total earnings.
Employer Takeaways
This letter provides a roadmap for employers in any industry – retail, construction, financial services, staffing, and beyond – that use or are considering non-discretionary bonus programs tied to company performance. Structuring a bonus as a “percentage of total earnings” under 29 C.F.R. § 778.210 eliminates the administrative burden of retroactively recomputing the regular rate each pay period. Employers using these bonus structures should confirm that their earnings base has been properly calculated and that no feature of the plan reduces the overtime compensation component of the bonus.
Opinion Letter FLSA2026-7: Meal Period Compensation When Employees Voluntarily Travel Off-Site
Background
An employee at a large, secured corporate campus argued that the employer’s 30-minute unpaid meal break was “coercive” because security checkpoints and the distance to the parking lot left employees with little time for off-site dining. The DOL considered whether the employer must compensate employees for the time an employee spends voluntarily traveling to and from the workplace during a meal break.
Conclusion: Unpaid Meal Period Acceptable
The DOL confirmed that the 30-minute unpaid meal period satisfied the requirements of the FLSA so long as employees are completely relieved of their duties for the specific purpose of taking a meal break.
If an employer provides sufficient time for an employee to take a meal break, the employer is not required to compensate the employee for a shortened meal time resulting from the employee’s voluntary decision to leave the work premises during the allotted meal period, even if security protocols or physical characteristics of the employer’s facility impede leaving and returning to the premises in a timely manner. Provided that a reasonable, on-site option exists, the impracticality of off-site dining does not make a meal break compensable. The DOL cites to a general rule establishing that time is compensable work time if it is “predominantly for the employer’s benefit” and is non-compensable if it is “predominantly for the employee’s benefit.”
Employer Takeaways
The opinion letter clarifies that employers may impose limitations or conditions upon a meal period without being obligated to compensate employees for that time; employers are not required to permit employees to leave the premises during a meal period in order for it to qualify as bona fide, and requiring an employee to remain on the premises during a meal period does not make that time compensable. This should reassure employers in manufacturing, logistics, defense contracting, energy, pharmaceuticals, and other industries that operate campus-style or access-controlled worksites.
Though employers are not required to extend meal periods to account for voluntary travel time or compensate employees for that time, employers should ensure that reasonable on-site options are available and verify that employees are not performing work duties during the allotted break period. Additionally, employers should confirm they are complying with their state or local laws, as many states impose meal period requirements that are more rigorous than the federal standard.
Opinion Letter FLSA2026-8: Timekeeping and Pay Practices for Pre-Shift Activities
Background
A non-exempt employee at a large public hospital employing approximately 18,000 non-exempt employees reported that staff routinely performed work tasks – such as reviewing patient charts – immediately after clocking in up to 7 minutes before their shift was scheduled to start. The hospital did not compensate the employees for this time, claiming that the work performed was de minimis, or of minimal importance. Additionally, the hospital’s timekeeping system automatically rounded early clock-ins up to the scheduled start time. The DOL analyzed whether these procedures were FLSA compliant.
Conclusions: Integral and Indispensable Pre-Shift Activities Must be Compensated, and Guidance on Rounding Policies
First, the DOL reaffirmed that employees who regularly perform work-related tasks before their scheduled shift begins must be compensated for that time if those pre-shift activities are “integral and indispensable” to their principal job duties. In the hospital setting, respiratory therapists receiving handoff reports regarding patient status and locating work assignments were integral and indispensable to principal job duties and therefore compensable. Conversely, time spent waiting to clock in or out generally is not compensable. The DOL recommended employers consider implementing policies “prohibiting employees from performing any work-related activities outside their scheduled shift.”
Second, the DOL expressed skepticism about the hospital’s invocation of the de minimis doctrine, emphasizing that where employees perform compensable work on a regular basis before their shifts begin, such work is unlikely to be de minimis (i.e., trivial, irregular, or administratively impractical to record). The DOL cautioned against relying too heavily on the de minimis doctrine, especially given how evolving technological advancements have allowed for increased precision in timekeeping.
Third, the DOL found that thehospital’s rounding policy did not comply with the FLSA and 29 C.F.R. § 785.48(b) because it “both is not facially neutral and only ever benefits the employer without ever benefiting the employee.” The DOL flagged, however, that if the rounding policy operated such that employees could also benefit from rounding in other circumstances (e.g., late arrivals being rounded back to the shift start time), and those benefits averaged out over time, the policy would likely comply.
Employer Takeaways
All employers with a non-exempt workforce should audit whether their employees are performing compensable pre-shift activities such as equipment checks, system logins, assignment reviews, or shift handoffs before their paid time begins, and review their practices. Employers should apply the de minimis doctrine sparingly, as its use is increasingly risky given modern timekeeping technology.
Whether such pre- and post-shift activities must be compensated is an issue that has recently come up in state wage and hour law cases as well. The Connecticut Supreme Court, for example, recently held that pre- and post-shift activity must be compensated under its wage and hour law, while at least one federal court has held otherwise under New York law. Employers must make sure they are aware of and complying with their state’s laws – in addition to federal law – when determining how to compensate for such activities.
In addition, employers who rely on time rounding should also review their rounding policies to confirm they are both facially neutral and neutrally applied over time, ensuring that employees benefit from rounding at least as often as they are disadvantaged by it.
Conclusion
These four opinion letters continue the DOL’s pattern of issuing guidance that largely favors clarity and allows employers flexibility in how they compensate employees. FLSA2026-8, however, reminds employers that timekeeping practices and pre-shift work remain areas of significant liability exposure, particularly in large operations. Because these letters carry the force of official interpretations under the Portal-to-Portal Act, employers who conform their practices to this guidance may assert a good-faith defense in future litigation. Employers should consult counsel to evaluate their current practices in light of this new guidance.
