Recently, the United States Department of Labor’s Wage and Hour Division issued four opinion letters discussing various wage and hour issues. The opinion letters provide helpful guidance for how the Department interprets and applies the FLSA and implementing regulations. The following are short summaries of the opinion letters, which are available here.
FLSA2026-5 — Exempt Employee Performing Additional Non-Exempt Work
This letter addresses whether a salaried employee exempt under Section 13(a)(1) of the FLSA (a Nursing Professional Development Specialist) can pick up hourly shifts in a non-exempt role (Staff Nurse) without losing exempt status or triggering overtime obligations. The DOL concluded that the Specialist’s exempt status is not lost by performing additional non-exempt work at an hourly rate, provided the employee’s primary duty remains the performance of exempt work and the salary requirements continue to be met. The letter explains that picking up one or two 12-hour Staff Nurse hourly shifts per week does not change the primary duty analysis because the substantial majority of the employee’s time is spent in the exempt Specialist role. The additional hourly compensation constitutes permissible “additional compensation based on hours worked for work beyond the normal workweek” under 29 C.F.R. § 541.604(a) and does not violate the salary-basis requirement.
FLSA2026-6 — Quarterly Bonus as Percentage of Total Earnings
This letter addresses whether a quarterly bonus program that allocates a bonus pool among eligible employees based on each employee’s share of total gross compensation (straight-time plus overtime) qualifies as a “percentage of total earnings” bonus under 29 C.F.R. § 778.210. A “percentage of total earnings” bonus provides simultaneous payment of any required overtime pay due on the bonus. The DOL explained that the quarterly bonus at issue satisfies the FLSA’s overtime requirement because it simultaneously pays any overtime compensation due on the bonus as an “arithmetic fact”—the bonus increases each employee’s pre-bonus straight-time and overtime earnings by the same fixed percentage. Accordingly, the employer need not recompute the regular rate or pay additional overtime compensation when distributing the quarterly bonus.
FLSA2026-7 — Compensability of Meal Period Travel Time
This letter addresses an employee’s question regarding whether his employer must pay him for his 30-minute meal period because, in order to leave work during the meal period, he must spend several minutes walking across the large work premises and exit a controlled access point to traverse to his vehicle to go out to eat. When dining out, some employees were left with only 10 to 15 minutes to eat. The employee stated this creates a “coercive dynamic” which discourages employees from taking meal breaks off-site. The DOL noted that the employer allots employees a 30-minute unpaid meal period in which they are allowed to stay on the premises. The DOL emphasized its longstanding position that even requiring an employee to remain on the employer’s premises does not convert meal break time into compensable working time. As such, time an employee voluntarily spends traveling off-site for a meal does not convert the meal period to compensable time. The DOL ultimately concluded that the employer provides a bona fide meal period under 29 C.F.R. § 785.19 because the employee is fully relieved from duty during the 30 minutes and has the option to eat on-site without losing time to transit. The letter emphasizes that employees need not be permitted to leave the premises for a meal period to be bona fide, and the employer is not obligated to extend the break to accommodate voluntary off-site travel.
FLSA2026-8 — Pre-Shift Activities, De Minimis Doctrine, and Rounding Practices
This letter addresses a hospital’s timekeeping and compensation practices involving approximately 18,000 non-exempt employees who clock in up to 7 minutes early and perform pre-shift activities before their paid shift begins. The DOL concluded that: (1) certain pre-shift activities—such as respiratory therapists receiving patient handoff reports and locating work assignments—are integral and indispensable to principal job duties and therefore compensable, while time spent waiting in line to clock in is not compensable; (2) if employees regularly perform compensable work before their shift, the de minimis doctrine is unlikely to excuse the employer from paying for that time, particularly given modern timekeeping technology; and (3) the hospital’s rounding policy—which (as described) rounds early clock-ins forward to the scheduled start time without ever benefiting employees—is not facially neutral and is inconsistent with 29 C.F.R. § 785.48(b) if employees are in fact performing compensable work during the rounded-off time.
If you have wage and hour issues for your business, the employment lawyers at Poyner Spruill are available to help.
