Labor & Employment Law Daily Wrap Up, DOL NEWS—Wage and Hour Division shares new opinion letters offering FLSA interpretations, (Jan 6, 2026)

By Brandi O. Brown, J.D.

The letters provide official written interpretations from the division addressing real-world questions and explaining how laws apply to specific factual circumstances.

The U.S. Department of Labor’s Wage and Hour Division issued four FLSA-related opinion letters yesterday. The letters offer official interpretations addressing real-world questions and explaining how laws apply to specific factual circumstances that have been presented by individuals or organizations, which the division believes may also have a broader interest to others.

“The Wage and Hour Division is committed to providing opinion letters that help American workers and businesses operate within the law so they can focus on meeting the needs of their customers,” said Wage and Hour Division Administrator Andrew Rogers. “We want to help them succeed. Our goal is to empower employers and workers with the tools and knowledge they need to prevent violations before they happen.”

FLSA2026-1. In this letter, the division considers whether an employee’s role (in this case, a Licensed Clinical Social Worker employed by a healthcare organization) meets the criteria for the learned professional exemption under section 13(a)(1) of the FLSA, and, if so, whether an employer is nevertheless permitted to reclassify the employee as nonexempt. Here, WHD explained that the employee’s described duties likely qualified her as exempt, but that the employer’s action of changing her compensation to hourly likely changed that.

WHD also added:

“Ultimately, even if all the criteria for an FLSA exemption are met, it is the employer—not the employee—that claims the exemption. In other words, the Act does not require an employer to classify as exempt an employee who meets the requirements of an exemption. Rather, employers have the discretion to classify such employees as non-exempt as long as they pay at least the federal minimum wage for all hours worked and the overtime premium for work in excess of 40 hours in a workweek. Employers may decide not to classify any qualified employees as exempt or only a subset of employees (including managers, particular grades or compensation levels, corporate office location, and others).”

As for the second part of the question—whether the employer is permitted to reclassify an exempt employee as nonexempt solely due to a change in organizational structure—the WHD stated that the FLSA “only prohibits the misclassification of a non-exempt employee as an exempt one.”

FLSA2026-2. Here, the division answers the question whether section 7(e) of the FLSA permits an employer to exclude certain bonus payments from an employee’s regular rate of pay. Under the circumstances described by the requester (waste management drivers who receive discretionary bonuses based on a variety of factors, such as punctuality, safety, and performance efficiency), the WHD concludes that the employer “must include the bonus payments in the regular rate of pay in any workweek for which they are earned, because such payments are incentives and do not qualify as a discretionary bonus or meet any other section 7(e) exclusion.”

The letter also addresses how to include these payments in the calculation of employee overtime premiums if the payments must be included in an employee’s regular rate of pay.

FLSA2026-3. In this letter, the division looks at whether a union and employer can enter into a collective bargaining agreement that mandates a 15-minute “roll call” prior to each scheduled shift but excludes that time when calculating overtime premiums under the FLSA.

Before delving into the related questions in detail, WHD summarizes its initial conclusion as follows:

“It is our opinion that, based on the information you provided in your request, the proposed 15-minute roll call period would constitute compensable hours worked under the Act and, therefore, must be counted in the total number of hours that an employee works each workweek for purposes of calculating any overtime pay due. Depending upon the contents and structure of the CBA, however, overtime compensation may not be required for this time under section 7(b)(1) or 7(b)(2) of the FLSA, which provide for partial overtime exemptions for workers employed under bona fide CBAs in two specific circumstances.”

However, the letter notes that under the circumstances described by the requestor, the CBA provision at issue “could be structured to comply with the requirements of section 7(b)(2) such that the additional 15-minute roll call periods do not automatically trigger the requirement to pay overtime compensation under section 7(a) when an employee’s weekly hours exceed 40, and should result in minimal, if any, overtime liability on its own.” Nevertheless, even there, overtime compensation must still be paid under certain circumstances described by WHD.

FLSA2026-4. Finally, in this letter the division considers whether, for purposes of the overtime exemption for certain commissioned employees in section 7(i) of the FLSA, an employer in a jurisdiction in which the state minimum wage exceeds the federal minimum wage must use the federal minimum wage, or alternatively, the higher state minimum wage, to determine whether it has satisfied the minimum pay standard in section 7(i)(1), and whether tips are deemed compensation for purposes of section 7(i)(2)’s requirement that more than half the employee’s compensation consist of commissions.

Here, the WHD concludes, in brief, that “an employee of a qualifying retail or service establishment paid more than one and one-half times the federal minimum wage satisfies the minimum pay standard in section 7(i)(1). Moreover, although tips are not commissions under section 7(i), in some circumstances, a portion of an employee’s tips would be compensation for purposes of determining whether an employee is primarily paid by commission under section 7(i)(2).”

Workers and employers are encouraged to call the Wage and Hour Division with questions and requests for compliance assistance at its toll-free helpline, 866-4US-WAGE (487-9243). Employers are encouraged to use the agency’s industry-specific compliance assistance toolkits to learn about their responsibilities under the laws enforced by the division. The PAID program also offers employers an opportunity to self-report and resolve potential minimum wage and overtime violations under the FLSA, WHD notes.

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