DOL Confirms Exempt Employees May Take Hourly Shifts

On May 28, 2026, the U.S. Department of Labor (DOL) issued Opinion Letter FLSA 2026-5, confirming that an employee who qualifies for the executive, administrative, or professional exemption may perform additional non-exempt work and receive hourly pay for that work without automatically losing exempt status under the Fair Labor Standards Act (FLSA).

The letter clarifies that dual-role arrangements do not automatically create overtime obligations, provided the employee’s primary duty remains exempt work and the employee continues to satisfy the salary basis and salary level requirements.

This update applies to U.S. employers that classify employees under the executive, administrative, or professional exemption. The opinion letter provides interpretive guidance under existing FLSA regulations.

What Employers Should Do

Legal Requirements

• Ensure any employee classified as exempt continues to satisfy all three FLSA exemption requirements: the primary duty test, the salary basis test, and the salary level test.
• Maintain the guaranteed salary at or above the applicable federal salary threshold and continue to pay the salary regardless of hours worked in the exempt role.
• Avoid treating this opinion letter as a blanket safe harbor. The DOL made clear that dual-role arrangements remain fact-specific, and other employees or job structures may not qualify.

Practical Considerations

• Document the exempt employee’s primary duty and monitor time allocation between exempt and non-exempt work regularly, so the classification remains defensible.
• Review dual-role arrangements regularly to confirm that the employee’s exempt duties remain the principal, main, or most important part of the job using the DOL’s factors, including relative importance of exempt duties, time spent on exempt work, freedom from direct supervision, and the relationship between salary and non-exempt wages.
• Consider engaging a Professional Employer Organization (PEO) or Administrative Services Organization (ASO) to help review exemption classifications, monitor dual-role arrangements, and maintain the payroll and documentation practices required to defend the exemption.

Overview

• The DOL relied on 29 C.F.R. § 541.604(a), which permits additional compensation beyond the guaranteed salary. Permitted forms include a bonus, a flat payment, straight-time hourly pay, time-and-one-half pay, or another compensation method.
  • Additional hourly pay by itself does not destroy the exemption.

• The exemption depends on whether the employee’s primary duty (defined as the “principal, main, major, or most important duty”) remains exempt work.

• Factors used to evaluate primary duty include:
  • The relative importance of exempt duties compared with non-exempt duties.
  • Time spent performing exempt work.
  • Freedom from direct supervision.
  • The relationship between the employee’s salary and the wages paid for similar non-exempt work.

• The DOL explained that exempt status is determined by the employee’s overall primary duty rather than a fixed percentage of time spent on exempt work.

• Spending more than 50% of time on exempt duties generally supports the exemption but spending less than 50% does not automatically defeat the exemption if the overall facts support exempt status.

• The exempt employee must continue to receive the required guaranteed salary, and that salary must continue regardless of hours worked in the exempt role.

• If the employee’s overall work becomes primarily non-exempt, the exemption may no longer apply, and overtime obligations could arise under the FLSA.

• The DOL emphasized that each dual-role arrangement must be evaluated on its specific facts. Employers cannot assume all dual-role arrangements will qualify.

Why This Matters

FLSA 2026-5 provides employers additional flexibility when addressing staffing shortages or operational needs, particularly in healthcare, retail, hospitality, and similar industries where exempt employees may occasionally perform frontline work. However, the flexibility is limited: the exemption depends entirely on whether the employee’s primary duty remains exempt work and the salary basis stays intact.

Employers that misapply the primary duty test or let non-exempt work quietly grow into the employee’s dominant role risk losing the exemption entirely, which would trigger overtime liability under existing FLSA rules.

Key Risks for Employers

• Employers who do not actively monitor employees’ time allocation may lose the exemption if non-exempt work becomes the employee’s primary duty.

• If the exemption is lost, employers may face liability for unpaid overtime, liquidated damages, and attorney’s fees and costs in private litigation.

• In addition to private lawsuits, the Wage and Hour Division may investigate misclassification and seek back wages, liquidated damages, and civil penalties directly.

Additional Information

DOL opinion letters provide compliance guidance and may support an employer’s good-faith compliance efforts, but they do not have the force of law and do not create new legal requirements.

Source References

• DOL – FLSA 2026-5

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