DOL WHD Issues Six New Opinion Letters (FLSA and FMLA): Practical Takeaways for Employers

On January 5, 2026, the U.S. Department of Labor’s Wage and Hour Division (WHD) released six new opinion letters, four under the Fair Labor Standards Act (FLSA) and two under the Family and Medical Leave Act (FMLA). WHD is framing the opinion-letter program as a compliance tool: a way to apply federal labor statutes to concrete workplace fact patterns, and to promote consistency in enforcement.

A quick caution up front: opinion letters are fact-specific, and courts are not required to follow them. That said, they can matter in real disputes, and WHD reiterates that these letters are “official interpretations” for purposes of the Portal-to-Portal Act, which is where the well-known good-faith reliance defense lives.

What follows are the key points, and where Florida employers should pay special attention.

1) FLSA2026-1: “Learned professional” duties may still fit, but the pay method can break the exemption, and employers can choose non-exempt anyway. This letter addresses a licensed clinical social worker (LCSW) who believed they still met the learned professional exemption even after losing supervisory duties. WHD’s take is straightforward: losing supervisory duties does not automatically defeat a learned professional exemption, because that exemption turns on advanced knowledge and the nature of the work, not management responsibility.

But WHD flags what often gets missed in practice: if the worker is moved from salary-basis pay to hourly pay (without meeting an alternative permitted compensation structure), the learned professional exemption is “likely” defeated, even if the duties stay the same. The other important piece is managerial discretion: WHD emphasizes that the FLSA does not require an employer to treat an employee as exempt even if the tests are met. Employers can classify employees as non-exempt so long as they comply with minimum wage, overtime, and recordkeeping rules.

Florida angle: this is a useful reminder for healthcare, professional services, and any employer doing “restructures” that shift exempt staff to hourly pay. If you change the pay method, you often change the legal analysis.

2) FLSA2026-2: Incentive bonuses with set criteria are usually in the regular rate, but calculate the shortfall correctly. This letter concerns a waste-management employer that pays drivers $12/hour, plus a performance-based bonus plan that can add up to $9.50/hour, based on detailed criteria and formulas. WHD concludes that the employer must include these bonuses in the regular rate when calculating overtime because they are not discretionary within the meaning of FLSA section 7(e)(3).

The letter is also a practical lesson in overtime math. In WHD’s example, when a worker earns the bonus on all hours (including overtime hours), the overtime “shortfall” is not the full difference between 1.5 times the base rate and 1.5 times the bonus-inflated rate. WHD explains that the employee already received the bonus component for the overtime hours, so what’s owed is typically the additional half-time premium on the regular rate for the overtime hours, not a second full bonus payment.

Florida angle: incentive programs are everywhere in hospitality, logistics, healthcare staffing, and sales. This letter reinforces two compliance risks: (1) mislabeling a structured bonus as “discretionary,” and (2) miscomputing the overtime adjustment when bonuses are earned over the same period as the overtime.

3) FLSA2026-3: Pre-shift “roll call” time is hours worked, but a CBA can potentially use limited partial overtime exemptions if the statutory conditions are met. This one addresses a proposed collective bargaining agreement (CBA) requiring a mandatory 15-minute “roll call” before each shift for dispatchers, while also seeking to exclude that time from overtime premium calculations. WHD says the roll call time is compensable hours worked and must be counted toward the 40-hour threshold.

WHD then explains that, depending on the CBA’s structure and the statutory requirements, the parties could draft the agreement to satisfy the partial overtime exemptions in 29 U.S.C. § 207(b)(1) or § 207(b)(2). WHD walks through what those exemptions require (including NLRB bona fide union status, specified overtime triggers, and hour caps and guarantees), and notes that if employees exceed the statutory hour limits, the exemption can drop out and overtime may need to be recalculated.

Florida angle: even outside union settings, the core point is valuable. If employees must be present to perform required pre-shift activities, that time typically counts. Attempts to “label it away” in policy language are a common source of backpay exposure.

4) FLSA2026-4: For the 7(i) commissioned-employee overtime exemption, WHD says use the federal minimum wage, and treat tips as “compensation” only when used to satisfy a wage obligation. This letter tackles two issues under the FLSA section 7(i) exemption for certain commissioned employees of retail or service establishments. First, WHD says the “1.5 times minimum wage” threshold in section 7(i)(1) is pegged to the federal minimum wage under 29 U.S.C. § 206, not a higher state minimum wage. WHD states the current numeric threshold as $10.875 ($7.25 × 1.5).

Second, WHD addresses whether tips count as “compensation” when determining whether more than half the employee’s compensation represents commissions (the section 7(i)(2) test). WHD’s conclusion is narrow: tips count as “compensation” only to the extent the employer uses them to satisfy a federal, state, or local wage obligation, such as through a tip credit. WHD also flags that the Fourth Circuit has taken a different approach, and advises employers in that circuit not to rely on the letter to the extent it conflicts with controlling precedent there.

Florida angle, and a real tension: WHD acknowledges that some courts, including decisions in the Southern District of Florida, have suggested that the highest applicable minimum wage (including Florida’s) should be used for the section 7(i)(1) threshold. WHD disputes that reading and argues the statute’s text points to the federal minimum wage, not the state rate. For Florida employers trying to use 7(i), this is exactly the sort of issue where “WHD says X” does not necessarily end the analysis. You have to evaluate forum risk, existing Eleventh Circuit guidance, and how your pay plan behaves under both approaches.

5) FMLA2026-1: School closures under a week change leave accounting depending on whether the employee is using a full week of leave. This letter focuses on weather-related school closures lasting less than a full week. WHD’s basic rule is: if the employee uses less than a full week of FMLA leave, closure days generally do not count against FMLA entitlement unless the employee was scheduled and expected to work and used FMLA leave for that time. But if the employee is on continuous FMLA leave for the full week, the entire week counts, even if the school closes one day. WHD also explains that “make-up days” later in the year do not retroactively change the analysis and must be evaluated separately when they occur.

Florida angle: for school districts, charter schools, and private schools, this is a helpful clarification for HR teams dealing with intermittent leave schedules and weather closures.

6) FMLA2026-2: Travel time to medical appointments can be FMLA leave, and certification does not need to estimate travel time. WHD concludes that FMLA leave may be used for travel time to and from medical appointments for a serious health condition (or to care for a qualifying family member), and that medical certification does not need to include travel-time estimates to be complete and sufficient.

WHD also draws a firm boundary: the protection is for travel tied to the medical purpose, not for unrelated errands or stops. WHD illustrates this with examples, including one in which only the therapy-related time is protected, not extra time for personal tasks.

Florida angle: this matters for employers with dispersed work sites, remote employees, and employees who travel significant distances for specialized care.

What Florida employers should do now

✅ Audit bonus and incentive plans to confirm whether payments must be included in the regular rate, then verify overtime calculations match how the bonus is actually earned and paid.

✅ If you reclassify exempt roles to hourly, do it intentionally and cleanly: confirm the exemption status under duties and compensation tests, and understand that moving away from a salary basis can defeat an exemption even when duties still look “professional.” 

✅ Treat required pre-shift and “before the clock” activities as a high-risk area, especially if policies or agreements try to exclude that time from overtime math.

✅ If you rely on the 7(i) commissioned exemption, stress-test it under both WHD’s federal-minimum-wage approach and the competing approach reflected in some Florida federal decisions, then decide your risk tolerance.

✅ For FMLA intermittent leave, update internal guidance to treat travel time to qualifying medical appointments as potentially covered, even if the certification does not mention travel time.

✅ For education employers, add a “closure under a week” rule to your FMLA playbook so leave banks are not over-debited during weather closures.