Four New DOL Opinion Letters Every Employer Should Review
- Mark Addington
- May 29
- 6 min read
The Department of Labor's latest guidance addresses exempt-employee classifications, bonus-related overtime calculations, meal periods, and pre-shift work activities that frequently lead to wage-and-hour claims.
Wage and hour litigation remains one of the most costly and disruptive forms of employment disputes. Even relatively small compliance errors, such as misclassifying an employee, miscalculating overtime pay, or overlooking compensable pre-shift work, can result in significant liability, including back wages, liquidated damages, attorneys' fees, and Department of Labor investigations.
On May 29, 2026, the U.S. Department of Labor's Wage and Hour Division (WHD) issued four opinion letters addressing recurring Fair Labor Standards Act (FLSA) compliance issues. These letters focus on employee classification, overtime calculations, meal periods, and compensable work time. Although opinion letters apply only to specific factual scenarios, they provide valuable insight into how the agency interprets and enforces federal wage-and-hour requirements.
For employers, these letters serve as a practical reminder that compliance depends not only on written policies but also on how those policies are implemented in the workplace.
Why Opinion Letters Matter
While opinion letters do not carry the force of a statute or court decision, they provide important guidance regarding how the Department of Labor analyzes compliance issues and enforces the FLSA. Employers and courts often view these interpretations as persuasive authority, particularly when evaluating complex wage-and-hour questions.
As a result, opinion letters can offer valuable insight into the types of compensation practices, employee classifications, and workplace procedures that may draw scrutiny during a Department of Labor investigation or a wage-and-hour lawsuit.
The Department's latest guidance highlights four areas that frequently generate litigation and enforcement activity: employee classification, overtime pay calculations, meal periods, and compensable work time.
The first opinion letter considered a hospital employee who held an exempt position but also performed staff nurse duties on an hourly basis when additional coverage was needed.
The Wage and Hour Division concluded that the employee could retain exempt status despite receiving separate hourly compensation for nursing duties. The agency emphasized that the employee's primary duty remained exempt work and that the salary-basis requirements continued to be satisfied.
This opinion reinforces a key principle under the FLSA: an employee does not automatically lose exempt status simply because they occasionally perform non-exempt work or receive additional compensation. Instead, the analysis focuses on the employee's primary duty and whether the exemption requirements remain satisfied.
This issue can arise whenever exempt employees assume additional operational responsibilities during staffing shortages or periods of increased demand.
Questions Employers Should Ask
Do salaried managers or supervisors also perform hourly work?
Are exempt employees receiving separate compensation for additional duties?
Is there documentation confirming that primary duties remain exempt in nature?
Are operational demands causing exempt employees to spend substantial time performing non-exempt tasks?
Employers should periodically review job duties to ensure that exempt classifications remain defensible over time.
The second opinion letter addressed whether a quarterly bonus qualified as a "percentage of total earnings" bonus under federal overtime regulations.
The employer's bonus formula increased both straight-time earnings and overtime earnings by the same percentage. Because the bonus was calculated as a percentage of total compensation, the Wage and Hour Division concluded that the employer was not required to recalculate the employee's regular rate of pay or make additional overtime adjustments.
This distinction is important because many bonuses must be included in the regular rate of pay, which can require additional overtime calculations. Properly structured percentage-based bonuses may avoid that requirement.
Bonus-related wage-and-hour violations remain common because employers often assume that all bonuses are treated similarly under the FLSA. In reality, the analysis depends heavily on how the bonus is structured and calculated.
Questions Employers Should Ask
Do bonuses, commissions, or incentive payments affect overtime calculations?
Are payroll personnel correctly identifying which bonuses must be included in the regular rate of pay?
Have compensation programs been reviewed for compliance with FLSA requirements?
Are compensation decisions based on established legal analysis rather than assumptions?
Practical Takeaways
Review bonus formulas to determine how they interact with overtime obligations.
Coordinate with payroll professionals and employment counsel when designing incentive programs.
Document the rationale for how bonuses are treated under the FLSA.
Even well-intentioned compensation programs can create significant liability if they are not carefully designed and administered.
The third opinion letter addressed whether a 30-minute unpaid meal period remained non-compensable when employees worked in a secure environment and faced practical limitations on leaving the premises during their break.
The Wage and Hour Division concluded that the meal period remained a bona fide unpaid break because employees were fully relieved of duty and free to use the time for their own purposes. The fact that employees remained within a secure facility did not, by itself, make the time compensable.
The key inquiry is not where employees spend their meal period. Rather, the relevant question is whether employees are relieved from work responsibilities and free to use the time primarily for their own benefit.
This opinion reinforces the view that meal periods are not automatically compensable merely because employees remain on company property.
Questions Employers Should Ask
Are employees completely relieved from duties during meal periods?
Do supervisors interrupt or assign work during breaks?
Do employees routinely perform work while eating?
Do actual workplace practices align with written meal-break policies?
Practical Takeaways
Train supervisors not to interrupt unpaid meal periods.
Monitor whether employees are performing work during meal breaks.
Periodically evaluate whether workplace practices align with written policies.
Many meal-period disputes arise not because the policy is unlawful, but because actual workplace practices differ from what the policy requires.
The fourth opinion letter may have the broadest implications for employers. The Wage and Hour Division examined timekeeping and rounding practices in a hospital setting and analyzed whether certain pre-shift activities constituted compensable work under the FLSA.
The agency emphasized that work performed before a scheduled shift may nevertheless be compensable if it is integral and indispensable to the employee's principal duties. Conversely, activities such as waiting in line to clock in may not be compensable if they occur before the employee's first principal activity.
The distinction is critical. The FLSA focuses on what employees are actually doing, not simply what their schedules indicate. If employees perform required tasks before clocking in, compensable work time may begin earlier than the recorded start of the shift.
Because claims involving uncompensated pre-shift and post-shift work are frequently brought as collective actions under the FLSA, even small amounts of unpaid time can create significant exposure when multiplied across an entire workforce.
Questions Employers Should Ask
Are employees performing tasks before clocking in?
Do employees prepare equipment or log into systems before their recorded start time?
Are employees required to put on protective equipment before beginning work?
Do timekeeping systems accurately capture all compensable work time?
Could rounding practices conceal compensable pre-shift or post-shift work?
Practical Takeaways
Evaluate whether pre-shift activities are integral and indispensable to job duties.
Review timekeeping systems for accuracy and completeness.
Assess whether rounding practices remain compliant under current enforcement trends.
Conduct periodic audits to ensure workplace practices match written policies.
Courts and enforcement agencies routinely examine actual workplace practices rather than relying solely on schedules or employee handbooks.
What Employers Should Do Next
In light of these opinion letters, employers should consider:
Reviewing exempt employee classifications, particularly where employees perform multiple roles or receive multiple forms of compensation.
Auditing bonus and incentive compensation plans to ensure overtime pay is calculated correctly.
Evaluating meal-break practices to confirm employees are fully relieved of duty during unpaid meal periods.
Examining pre-shift and post-shift activities that may constitute compensable work under the FLSA.
Reviewing timekeeping and rounding policies to ensure they accurately capture all hours worked.
Conducting a wage and hour audit to identify compliance risks before they become the subject of a Department of Labor investigation or employee lawsuit.
Proactively identifying and addressing wage-and-hour issues can significantly reduce legal exposure and help employers avoid costly disputes.
Conclusion
The Department of Labor's recent opinion letters do not establish new law, but they provide meaningful guidance on how the agency currently evaluates wage-and-hour compliance under the FLSA.
Employers should view these letters as an opportunity to review their employee classification decisions, compensation structures, meal-break practices, and timekeeping systems. In many cases, liability arises not because a policy is unlawful, but because day-to-day workplace practices have drifted away from what the policy requires. A proactive wage-and-hour audit can help identify potential issues before they become the subject of a Department of Labor investigation, collective action, or costly lawsuit.
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