On May 28, 2026, the United States Department of Labor (DOL) Wage and Hour Division (WHD) issued an opinion letter, addressing whether an exempt employee can perform additional work in a secondary, non-exempt role at an hourly rate. The WHD said “yes”—the performance of additional, non-exempt work at an hourly rate does not alter the employee’s exempt status under the Fair Labor Standards Act (FLSA).
Below, KingSpry’s Employment Law Chair, Avery E. Smith, Esq., reviews the WHD’s recent guidance and explains what it means for covered employers and how it may affect their workforce management decisions.
The Employment Scenario
The opinion letter addresses a common staffing model in which employees pick up extra shifts in capacities other than their typical work. The employer, an academic medical center/nonprofit hospital, employs staff in various positions, including as a “Staff Nurse” and “Nursing Professional Development Specialist.” Some of the job duties of these positions overlap.
Staff Nurses are paid on an hourly basis, classified as non-exempt, and are eligible for overtime compensation under the FLSA. Whereas Specialists are paid a salary and are exempt from the FLSA’s minimum wage and overtime compensation requirements. The hospital permits Specialists to pick up additional shifts as Staff Nurses on the weekends and pays them on an hourly basis for that work.
The key question: Can an exempt employee perform additional, non-exempt work on an hourly basis without losing their exempt status?
Relevant Law
The FLSA requires covered employers to pay employees at least $7.25 an hour and overtime at a rate of at least one and one-half (1½) times their regular rate of pay. The FLSA, however, recognizes exemptions from these wage and hour requirements.
Section 13(a)(1) provides an exemption for individuals employed in a “bona fide executive, administrative, or professional capacity,” if they meet two requirements:
- Their “primary duty” is the performance of exempt work; and
- They are compensated on a salary basis meeting the FLSA’s thresholds.
The WHD clarified that when an employee is paid on a salary basis, the employer can provide additional compensation without violating the salary-basis requirement. This additional compensation can be paid on any basis, including hourly.
Application
Applying the first element, the WHD concluded, “when an otherwise-exempt Specialist picks up one or [] two shifts per week in the Staff Nurse role, the employee’s primary duty remains the performance of qualifying exempt Specialist work.”
Applying the second element, the WHD concluded that the Specialist’s base pay structure is sufficient, because “for each week, the employee receives the full Specialist salary, regardless of hours worked, for all worked performed during the week in the Specialist role.” The additional hourly compensation received for extra shifts as a Staff Nurse does not defeat the Specialist’s exempt status.
Further, because the Specialist remains exempt under the FLSA, there are no overtime implications under this employment arrangement.
Key Takeaways for Employers
Although the WHD’s opinion letter is fact-specific, it sheds light on relevant FLSA provisions and how those provisions will likely be applied in similar circumstances.
Employers who allow exempt employees to work in multiple or hybrid capacities should:
- Evaluate employees’ primary duties—do not assume employees are exempt simply because they perform some exempt tasks.
- Clarify and document primary duty expectations and job descriptions to clearly define what the employee’s primary duties are.
- Assess how employees in hybrid roles actually spend their time—whether a majority of it be on their exempt or non-exempt role.
- Train managers and payroll professionals to avoid the misclassification of employees’ exempt or non-exempt status.
- Document classification decisions and the reasoning behind them.
