DOL Confirms Exempt Employees May Be Paid for Performing Nonexempt Work

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.

The “primary duty” requirement focuses on whether the employee’s “principal, main, major or most important duty” is the performance of exempt work. This determination is fact specific. Relevant factors include:

• the relative importance of the exempt duties compared to other duties; 
• the amount of time spent performing exempt work;
• the employee’s relative freedom from direct supervision; and 
• the relationship between the employee’s salary and the wages paid to other employees for similar non-exempt work.

The regulations explain that employees who spend more than 50% of their time on exempt work will generally meet the primary duty requirement. However, employees who spend less than 50% of their time on exempt work may still qualify for the exemption, if the other factors support that conclusion. 

Exempt employees must also be paid on a salary basis at or above the minimum level set by the regulations (currently $684/week under the FLSA). An exempt employee paid on a salary basis may receive additional compensation beyond their salary without losing the exemption, so long as the employee is guaranteed at least the required minimum weekly salary.

Analysis

The DOL confirmed that when an exempt employee performs both exempt and non-exempt work for the same employer within a single workweek, the exemption is preserved so long as the employee’s primary duty remains exempt work.

Applying that framework, the DOL concluded that the specialists retained their exempt status despite their additional work as staff nurses. The agency emphasized that the specialists:

• continued to perform all duties associated with their exempt role;
• maintained a full-time schedule in that position; and
• only occasionally and voluntarily performed additional non-exempt work, which constituted less than 50% of their total working time.

The DOL also found that the salary basis requirement was satisfied because the specialists received their guaranteed salary at or above the required level, regardless of hours worked. The additional hourly compensation for staff nurse shifts did not undermine the exemption, as it constituted permissible supplemental pay layered on top of the guaranteed salary.

Notably, the employer opted to divide the specialist’s weekly salary by 40 to derive the hourly rate to be paid for staff nurse work. The DOL opined that this approach was permissible but not required. Indeed, the additional compensation could have been paid on any basis (including flat sum, hourly at any rate, or any other basis). Moreover, because it was undeniable that the employee was paid on a salary basis for their work as a specialist, the fact that the employer used a “divide by 40” approach to calculate the hourly rate for staff nurse work did not trigger the “reasonable relationship” inquiry for exempt employees whose earnings are based on an hourly, daily, or shift rate.¹ 

The DOL cautioned that this outcome was dependent on the facts presented. If, over time, the balance of duties shifted such that the employee’s primary duty is no longer exempt work, the exemption would be lost. In that event, the employer would be required to calculate overtime based on the employee’s total hours worked and total remuneration across both roles.

Employer Takeaways

This opinion letter reinforces that employers may structure roles so that an exempt employee paid on a salary basis may occasionally perform nonexempt work and be paid for such work on an hourly (or other) basis as long as their primary duty remains exempt. However, the analysis remains highly fact specific. Employers should ensure:

• the employee’s primary duty continues to be exempt work;
• a compliant salary basis is maintained; and
• any additional compensation is structured as supplemental to, not a substitute for, the required salary.

Regular review of job duties and time allocation is advisable to mitigate the risk of inadvertently losing exempt status as work patterns evolve.