On May 28, 2026, the U.S. Department of Labor (DOL) issued Opinion Letter FLSA2026‑5, confirming that an exempt employee paid on a salary basis may be paid on an hourly basis for performing work in a secondary, nonexempt role as long as their primary duty remains exempt and they continue to be paid on a salary basis.
The opinion letter arose from a request involving a Nursing Professional Development Specialist employed by a medical center. The medical center treats specialists as exempt under the FLSA but permits them to pick up shifts as staff nurses, a separate position classified as nonexempt. Specialists typically work 40 hours per week in their specialist role and then voluntarily pick up one or two additional 12-hour shifts as staff nurses. When specialists pick up shifts as staff nurses, they receive hourly pay, in addition to their fixed salary as specialists.
Relevant Legal Authority
Under the Fair Labor Standards Act (FLSA), employees must be paid at least the federal minimum wage for all hours worked, and overtime at one and one-half times their regular rate for any hours worked over 40 in a workweek.
In certain circumstances, including when the employee works in a “bona fide executive, administrative, or professional capacity,” employers may treat employees as exempt from these minimum wage and overtime requirements. To qualify for this exemption, an employee generally must meet certain tests regarding their primary job duty and be paid on a salary basis.
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