U.S. DOL’s Wage and Hour Division Issues New FLSA Compliance Guidance

On May 28, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a collection of opinion letters that provide guidance on several important issues under the Fair Labor Standards Act (FLSA). Earlier this year, we reported on the WHD’s first round of FLSA guidance, and the latest batch of letters follows the WHD’s initial approach of providing practical guidance to employers regarding their FLSA compliance efforts. A brief discussion of the four new letters follows.

FLSA2026-5 – Issue: Can an employer employ a worker in a salaried/exempt role when the worker also performs additional work in a secondary, non-exempt role at an hourly rate—and if so, what (if any) overtime implications arise?

• A medical center employed salaried/exempt nursing specialists and hourly/non-exempt staff nurses. Nursing specialists usually worked one or two 12-hour shifts on the weekends as staff nurses per week on top of their approximately 40-hour workweek (Monday through Friday), and the medical center paid them hourly compensation for this additional work. The WHD considered whether the additional shifts and hourly pay might affect the employees’ ability to satisfy the primary duties test or the salary basis test. 
• Assuming that the work of a nursing specialist constituted exempt work, the WHD opined that these nursing specialists satisfied the “primary duty” requirement of the FLSA’s “executive, administrative, or professional” exemption at 29 U.S.C. § 213(a)(1) because the “substantial majority” of the employees’ time  (i.e., approximately 62–77% of the specialists’ total hours worked per week) was spent in the exempt nursing specialist role.
• The WHD further opined that the salary basis test was satisfied because (i) the nursing specialists were paid a salary, regardless of hours worked, for all work performed in the nursing specialist role at a rate that exceeded the minimum salary-level requirement set forth at 29 C.F.R. § 541.600; and (ii)  the FLSA permits an employer to provide an exempt employee additional compensation for hours beyond the normal workweek without violating the exemption’s salary-basis requirement. Id. § 541.604(a).
• Thus, under these circumstances, the performance of additional non-exempt work at an hourly rate was insufficient to alter the employees’ exempt status. Nursing specialists remained exempt even though they performed some non-exempt staff nurse duties and received additional hourly compensation for such work.

FLSA2026-6 – Issue: Must an employer that pays a quarterly bonus to non-exempt employees, and determines each employee’s share of the bonus pool by calculating his or her percentage of the total gross compensation paid to all eligible employees, recompute the employees’ regular rate for overtime purposes or pay additional overtime compensation?

• An employer paid quarterly bonuses to its employees, some of whom were non-exempt and eligible for overtime premium pay. The employer determined each employee’s share of the quarterly bonus pool by calculating that employee’s total gross compensation (straight time plus overtime) as a percentage of the total gross compensation paid to all eligible employees for the quarter. So, for example, if the employee’s total gross compensation constituted 5% of the total gross compensation paid to all eligible employees in the quarter, and the available bonus pool was $100,000, the employee would receive a $5,000 bonus.
• Ordinarily, non-exempt employees are eligible for overtime compensation “at a rate not less than one and one-half times the regular rate at which [the employee] is employed” for all hours worked over 40 hours in a workweek. 29 U.S.C. §§ 206(a), 207(a)(1). The “regular rate” includes all remuneration for employment paid to, or on behalf of, the employee, with enumerated exceptions. 29 U.S.C. § 207(e).
• Non-discretionary bonuses must be included in the regular rate for purposes of the overtime calculation. 29 C.F.R. §§ 778.208, 778.211. This becomes complicated when bonus payments are determined and paid well after the normal workweeks or pay periods in which they are earned. FLSA regulations require that the employer, after ascertaining a non-exempt employee’s bonus amount, recompute that employee’s regular rate for each workweek in which the bonus was earned to determine any additional overtime premium due. 29 C.F.R. § 778.209(a).
• This recomputation is unnecessary, however, when the bonus is based on an employee’s “percentage of total earnings,” or a bonus payment that provides “the simultaneous payment of overtime compensation due on the bonus.” 29 C.F.R. § 778.210.
• The WHD opined that, because each employee in the bonus pool was being paid as a bonus a fixed percentage of his or her own total earnings, and the formula for determining that percentage was the same for all employees, the bonus pool satisfied the requirements of 29 C.F.R. § 778.210 and constituted a percentage-of-total-earnings bonus. That was true even though each employee received a different percentage of the bonus pool. Thus, the employer was not required to recompute the regular rate or pay additional overtime compensation as a result of the quarterly bonus.

FLSA2026-7 – Issue: Is time spent traversing an employer’s worksite during an employee’s 30-minute meal break compensable when the employee is permitted to remain on the premises during lunchtime?

• An employer on a large corporate campus provided non-exempt employees an unpaid 30-minute meal period, during which they had the option to leave the premises or remain on the worksite. Employees who chose to leave the worksite had to walk 5 to 10 minutes to the parking lot, with additional time to pass through security. Some employees argued that this effectively left them with only 10 to 15 minutes in their meal period—and thus, that they did not receive a bona fide meal break and should have been paid for the time.
• The FLSA (unlike many states’ laws) does not require employers to provide rest breaks or meal periods. However, FLSA regulations provide that bona fide meal periods are not worktime and, therefore, not compensable. The regulations further provide that meal breaks lasting 30 minutes or longer are ordinarily long enough to be bona fide, provided that employees are completely relieved from duty during the break. 29 C.F.R. § 785.19(a).
• The WHD noted its long-standing position that requiring an employee to remain on the employer’s premises does not convert bona fide meal break time into compensable working time. See 29 C.F.R. § 785.19(b). The WHD opined that, for the same reason, an employer is not obligated to exclude (and thus, consider compensable) time voluntarily spent traveling off-site for lunch from the bona fide meal period, including time leaving and entering the employer’s work premises.
• Because the employees were completely relieved from their work duties during their entire 30-minute meal breaks, and the period as a whole was sufficient to allow employees to eat a meal, the employer provided a bona fide meal period consistent with 29 C.F.R. § 785.19. And therefore, the employer was not required to compensate employees for any of the time, including the time they spent getting to and from the parking lot.

FLSA2026-8 – Issue (1): Is pre-shift work performed after clocking in compensable under the FLSA when it’s regular and integral to the job?

• Non-exempt, hourly employees performed various activities before their paid shifts began, including locating work assignments, completing documentation, assigning employees to work locations, and receiving handoff reports from colleagues.
• Under the federal Portal-to-Portal Act, activities that are preliminary or postliminary to an employee’s principal activities (i.e., activities that are integral and indispensable to an employee’s work) are not compensable. 29 U.S.C. § 254(a); 29 C.F.R. § 790.8(c).
• The WHD opined that at least some of the above-referenced activities—namely, receiving handoff reports and locating work assignments—were likely integral and indispensable to the employee’s primary job duties, and therefore compensable. However, it was unable to draw broad conclusions regarding various other pre-shift administrative activities without understanding the principal job duties of the employees at issue.

Issue (2): Does time spent waiting due to timekeeping station bottlenecks constitute compensable work time under the FLSA, particularly when followed by work activities?

• The WHD opined that time spent waiting in line to clock in before the employee’s first principal activity—and clock out after the employee’s last principal activity—is not compensable under the FLSA because it is not integral and indispensable to the job an employee is hired to perform. This principle remains true even when the waiting time occurs on the employer’s premises.

Issue (3): May an employer invoke the de minimis doctrine to exclude daily, predictable time losses of up to seven minutes per employee, considering the significant aggregate impact?

• Employees were given flexibility to clock in up to seven minutes early to avoid tardiness that might be caused by long lines at the employer’s timekeeping stations. The employer’s timekeeping system rounded start times to the scheduled shift times (e.g., rounding a 6:53 a.m. clock-in up to 7:00 a.m.).
• The employer did not compensate employees for this rounded off time because it claimed the time was de minimis.
• Under the FLSA, employers must pay employees for all hours worked, but insubstantial or insignificant periods of time beyond scheduled working hours which cannot, as a practical administrative matter, be precisely recorded for payroll purposes may be disregarded. 29 C.F.R. § 785.47.
• The WHD noted that, to the extent pre-shift compensable work is irregular, the practical difficulty of recording the time may justify treating it as de minimis. It could not say based on the information provided, however, whether it was feasible for the employer to record the actual time employees begin their first principal activity, as opposed to personal activities such as getting coffee, socializing, checking phones, storing belongings, or waiting for the shift to start.
• Nevertheless, the WHD noted that to the extent the employees were performing compensable work each day prior to their paid shifts commencing, such work was “unlikely” to be de minimis. The WHD further cautioned employers about applying the de minimis doctrine generally given that technological advances have made it possible to track employee work time with increasing precision, and recommended clear policies prohibiting employees from performing work-related activities outside their scheduled shift.

Issue (4): Does an employer’s policy of rounding early clock-ins at the start of a shift while prohibiting early clock-outs comply with the requirement for neutral rounding practices under 29 C.F.R. § 785.48(b)?

• FLSA regulations permit employers to round employee time to the nearest fraction of an hour only when doing so will not result, over a period of time, in a failure to compensate employees for all time actually worked. 29 C.F.R. § 785.48(b). In other words, a rounding policy must be both neutral on its face and average out over time so it does not consistently favor the employer.
• The WHD opined that the employer’s policy of prohibiting early clock-outs did not implicate Section 785.48 because nothing suggested that employees were performing compensable work after their paid shifts ended.
• The WHD further noted that the employer’s practice of rounding early clock-ins could be inconsistent with Section 785.48 if employees who perform compensable work during the early clock-in period are never paid for that time and not afforded a chance for over-compensation to average that time. If, on the other hand, the rounding practice is facially neutral such that employees can and do benefit from rounding in other circumstances, then the policy would likely comply with Section 785.48(b).

Employers should take note of this guidance but also be aware that many states have rules and regulations that are more strict than the FLSA’s. For example, as we previously discussed here, some states’ wage and hour laws do not incorporate the Portal-to-Portal Act’s amendments to the FLSA regarding preliminary and postliminary activities, so the WHD’s guidance based on those provisions may not apply to workers in certain jurisdictions. Nevertheless, we expect to see additional guidance from the DOL as the year progresses and will continue to monitor any developments as they arise.

For more information regarding the issues discussed in this article or other employment issues, please contact James P. Looby at jlooby@vedder.com, Michael D. Considine at mconsidine@vedder.com, or any other Vedder attorney with whom you have worked.