New DOL Opinion Letters Clarify Exempt Status, Quarterly Bonuses, Meal Periods + Pre-Shift Activities

Takeaways

• The opinion letters, issued May 28 and signed by Wage and Hour Administrator Andrew B. Rogers, address common wage and hour risks, including exempt status, meal periods, the impact of quarterly bonuses on the regular rate calculation and routine pre-shift activity, off-the-clock work and rounding practices.
• Opinion letters provide useful guidance on how the Department of Labor may apply the FLSA in particular fact situations.
• Employers can use opinion letters in litigation to help defend against allegations that a violation of the FLSA was “willful.”

Related links

• FLSA2026-5
• FLSA2026-6
• FLSA2026-7
• FLSA2026-8
• WHD Opinion Letters page

Article

The Department of Labor (DOL) Wage and Hour Division recently issued four opinion letters interpreting the Fair Labor Standards Act (FLSA). The letters issued on May 28, 2026, signed by Wage and Hour Administrator Andrew B. Rogers, address:

• Whether exempt employees retain their exempt status when performing additional nonexempt work; 
• Whether a quarterly bonus program is a valid “percentage of total earnings” bonus; 
• Whether time spent traveling offsite for bona fide meal periods is compensable; and
• Compensability of pre- and post-shift time, the de minimis exemption, and rounding practices.

Exempt Employee Taking Non-Exempt Shifts

An exempt employee may perform additional non-exempt work at an hourly rate without losing exempt status, so long as the employee’s primary duty remains the performance of exempt work and the salary basis and salary level tests continue to be satisfied.

The scenario in opinion letter FLSA2026-5 involves a nursing professional development specialist at an acute care hospital who routinely picks up non-exempt staff nurse shifts on weekends and was paid on an hourly basis. The weekend shifts make up about 23% (occasionally, about 38%) of her total hours worked per week. The hourly rate for her staff nurse shifts is approximately equivalent to her weekly salary for the specialist role, divided by 40 hours.

The employee does not lose her exempt status under FLSA, Section 13(a)(1) based on these facts. The opinion letter noted that she spends the substantial majority of her work time in her exempt specialist role; therefore, her primary duty remains the performance of exempt work. Further, paying extra straight-time hourly pay for separate non-exempt assignments, by itself, does not destroy the exemption if the employee is truly salaried in the primary exempt role and the employer structures the additional payments as permissible extra compensation under 29 C.F.R. § 541.604(a).

Employers should document the exempt employee’s primary duty, confirm the guaranteed salary is paid in full whenever the employee performs any work in the workweek, and periodically review whether the employee’s non-exempt work has become so substantial that the employee’s primary duties have shifted. If that happens, the exemption may be lost and overtime would be calculated based on all hours worked and combined remuneration across both roles. Employers should also be mindful that some state laws impose stricter requirements on the amount of time an exempt employee may spend performing non-exempt duties.

Quarterly Bonus and Regular Rate

A nondiscretionary quarterly bonus can satisfy the FLSA’s overtime requirements without any later regular rate re-computation if it is structured as a valid “percentage of total earnings” bonus under 29 C.F.R. § 778.210.

FLSA2026-6 addresses an employer that calculates each employee’s share of the quarterly bonus pool based on that employee’s proportionate share of all eligible employees’ total gross compensation. (For example, if the quarterly bonus pool is $100,000 and an employee’s total gross compensation equates to 5% of the total gross compensation paid to all eligible employees, the employee would receive 5% of the $100,000 bonus pool, or a $5,000 bonus.) The employee share factored in both straight-time and overtime earnings. Because the bonus mathematically increased both straight time pay and overtime pay by the same percentage, the bonus included the overtime due on the bonus itself. Therefore, the opinion letter said the employer need not go back and recalculate the regular rate or pay additional overtime when the quarterly bonus was distributed.

The letter underscores that this method of calculating nondiscretionary bonuses works only if the bonus formula truly operates as a percentage of each employee’s total earnings and does not dilute overtime. Employers should ensure that the earnings used in the formula:

• Include required overtime premiums; and
• Exclude amounts that are not part of the regular rate (such as discretionary bonuses, gifts, expense reimbursements, or benefit-plan contributions).

Moreover, employers should ensure they apply the method consistently.

Meal Break Travel Time

The time an employee spends walking to the parking lot to their vehicle and going through security gates for an off-site meal is not compensable when the employer provides an unpaid 30-minute meal period. Opinion letter FLSA2026-7 responds to a query from an employee who claimed to spend 10-15 minutes walking to the parking lot from the jobsite and additional time going through the security gates (and the same amount of time on the return trip) when going offsite during their unpaid 30-minute meal break, sharply reducing the time available for the meal. DOL said the key question is not whether employees can realistically use the full 30 minutes for an off-site meal; what matters is whether the employer provides a bona fide meal period during which employees are fully relieved of duty (a fact-intensive analysis).

Under 29 C.F.R. § 785.19, an employer need not permit employees to leave the premises for meal periods. Nor is an employer required to exclude optional time spent going off-site to dine from a bona fide meal period or treat that time as compensable. Because the employer provided 30 minutes for the meal period and a space on-site to spend the full 30 minutes, DOL explained that the meal period was not compensable even if the employee chose to leave for an off-site meal.

Employers should ensure employees are fully relieved of work responsibilities during unpaid meal periods and avoid interrupting employees or effectively requiring work during their breaks. Employers also must comply with state or local laws, which may impose stricter meal-period requirements.

Compensable Time and Rounding

Pre-shift time that respiratory therapists and other hospital employees spend reviewing assignments, receiving handoff reports, and preparing for patient care appears to be integral and indispensable to their principal job duties and therefore compensable “hours worked.” However, waiting in line to clock in or out is not compensable preliminary or postliminary activity if it occurs before the first principal activity or after the last principal activity of the day, the DOL explained in opinion letter FLSA2026-8.

The opinion letter also advises that if such pre-shift work happens regularly, the time is unlikely to be de minimis and urges caution when relying on the de minimis doctrine. “Particularly given the technological advances that have made it possible for employers to track employees’ work time with increasing precision, employers should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work with any degree of regularity,” the letter states.

In addition, the opinion letter concludes that the employer’s practice of rounding early clock-ins (up to seven minutes before employees’ shifts start) does not appear to be neutral, either on its face or as applied, and so could result in minimum wage or overtime violations for pre-shift work. A rounding policy must operate in such a way that it does not, when evaluated over time, routinely undercompensate employees and work to the employer’s benefit. Employers using rounding should therefore audit whether their systems are truly neutral in practice, especially where early clock-ins may coincide with integral pre-shift work.

Opinion Letters

DOL opinion letters offer useful guidance on how the agency may apply the FLSA in particular fact situations. An opinion letter can be a valuable defense for an employer facing allegations of a “willful” violation of the FLSA. Employers can review opinion letters and submit requests on the DOL Opinion Letters page.

Reach out to your Jackson Lewis attorney with any questions or for assistance in preparing an opinion letter request or other workplace issues.