On May 28, 2026, the Department of Labor (“DOL”) issued FLSA2026-5, which was one of four opinion letters issued that day relating to wage and hour concerns. In the letter, the DOL addressed whether an employee who qualifies for the executive, administrative, or professional exemptions under Section 13(a)(1) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 213(a)(1), may also perform additional non-exempt work for the same employer without losing the exemption status. The opinion arose from a healthcare employer that classified its Nursing Professional Development Specialists (“Specialists”) as exempt employees but allowed them to voluntarily pick up additional shifts as non-exempt Staff Nurses.
The DOL concluded that an exempt employee may perform additional non-exempt work and receive additional compensation for that work without jeopardizing the exemption, provided the employee continues to satisfy both the salary basis and the applicable primary duty test requirements under the FLSA.
In reaching its conclusion, the DOL relied on the regulations governing exempt employees. In particular:
- Under 29 C.F.R. § 541.700(a), an employee’s “primary duty” is “the principal, main, major, or most important duty that the employee performs.” The DOL emphasized that the Specialists at issue continued to perform all duties associated with their exempt positions, maintained their regular exempt schedules, and only occasionally worked additional Staff Nurse shifts. The additional non-exempt work consisted on average approximately 23% of the Specialists’ work week, with the number rising to 38% sporadically. Because the Specialists’ exempt responsibilities remained their primary duty, the exemption was preserved.
- The DOL also confirmed that paying additional compensation for non-exempt work does not, by itself, defeat the salary basis requirement. The regulations expressly permit exempt employees to receive additional compensation beyond their guaranteed salary (including but not limited to hourly compensation) without losing their exempt status. See 29 C.F.R. § 541.604(a). The Specialists here continued to make their approximately $2,000 base salary a week (which is above the current FLSA salary threshold requirement of $684 per week) and received an additional hourly compensation for the Staff Nurse shifts. The extra compensation could have even taken the form of a shift deferential, flat sum, bonus payment, or other forms without losing the exemption status.
Accordingly, based on the facts presented to the DOL, the employer could compensate for the additional Staff Nurse shifts on an hourly basis while maintaining the employees’ exempt classification.
Employer Takeaways
While employers may allow exempt-employees to hold both exempt and non-exempt positions while keeping their exempt classification, employers should carefully monitor and restrict the amount of non-exempt work being performed. If the balance of duties shifts such that the employee’s primary duty is no longer exempt work, the employee could lose the exemption and become entitled to overtime for all hours worked (as well as potential additional penalties).
To ensure continued compliance with the law, if employers permit exempt employees to work additional non-exempt shifts, employers should take the following measures:
- Continue to maintain the employee’s guaranteed exempt salary.
- Ensure the employee continues to perform the exempt role as their principal and most important duty. To do so, employers should periodically review job duties and time allocations to confirm the exempt role remains the employee’s primary duty.
- Track the amount of non-exempt work being performed.
- Confirm that the applicable state law does not have differing requirements.
Even with taking these measures, employers must continue with caution as the analysis is fact-sensitive and because exemptions are narrowly construed with the employer bearing the burden of proving the exemption applies. Further, while the DOL opinion letters represent the Wage and Hour Division’s official interpretation of the FLSA and can be persuasive authority, these letters do not have the force of law and are not binding in the same manner as statutes, regulations, or controlling judicial decisions. Nevertheless, employers that act in good-faith reliance on an applicable opinion letter may be entitled to a defense under Section 10 of the Portal-to-Portal Act, 29 U.S.C. § 259.
Please contact an NFC team member if you have any questions or seek further assistance.