DOL Opinion Letter Offers Reminders on Exempt Classification Decisions

On January 5, 2026, the U.S. Department of Labor (DOL) issued Opinion Letter FLSA2026‑1, addressing whether an employer may classify an employee as non‑exempt even when the employee satisfies the educational and job duties requirements of the Fair Labor Standards Act’s (FLSA) learned professional exemption.

The opinion letter arose from a request involving a Licensed Clinical Social Worker (LCSW) employed by a healthcare organization. The employee performed core job duties that included clinical assessments and psychosocial evaluations; treatment planning and documentation; participation in interdisciplinary care teams; crisis intervention and discharge planning; and consistent application of professional discretion and clinical judgment. The employee had been classified as exempt since obtaining her professional license, but following an internal restructuring that eliminated supervisory responsibilities, they were reclassified as non-exempt. The employee sought clarification as to whether the position continued to meet the criteria for the FLSA’s learned professional exemption and, if so, whether the employer could nevertheless pay them on an hourly basis and classify them as non‑exempt.

Relevant Legal Authority

The FLSA generally requires covered employers to pay employees at least the federal minimum wage for all hours worked, as well as overtime compensation at a rate of no less than one and one‑half times the employee’s regular rate of pay for hours worked in excess of 40 in a workweek. See 29 U.S.C. §§ 206(a), 207(a).

Section 13(a) of the FLSA provides exemptions from the statute’s minimum wage and overtime requirements for certain employees, including those employed in a bona fide administrative, executive, professional capacity under Section 13(a)(1), as well as a computer professional under Section 13(a)(17). These exemptions are commonly referred to as the “white‑collar” exemptions. The regulations defining and delineating these exemptions, including both compensation and duties, are set forth in 29 C.F.R. Part 541. 

Of particular relevance to the DOL’s analysis for this opinion letter was the learned professional exemption, which requires that the employee’s primary duty consist of “work requiring advanced knowledge in a field of science or learning” which is “customarily acquired by a prolonged course of specialized intellectual instruction.” 29 C.F.R. § 541.301(a). This exemption differs from the executive exemption, which requires the employee customarily and regularly direct the work of two or more other employees, 29 C.F.R. § 541.100(a)(3), and the administrative exemption, which requires the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, 29 C.F.R. § 541.200(a)(2). 

Analysis of Exemption and Default Nature of Non-Exempt Classification

The DOL was unable to conclusively answer the first part of the employee’s inquiry—whether her position met the learned professional exemption. To qualify, the employee was required to satisfy the exemption’s work requiring advanced knowledge, primary duties, and compensation requirements. Based on the licensing requirements applicable in the employee’s state, which mandated that LCSWs hold at least a master’s degree, the DOL assumed that the advanced knowledge and academic requirements were met. The DOL further concluded that, based on the description of the employee’s core job duties, the primary duty was consistent with learned professional work. However, because the employee did not provide sufficient information regarding their compensation, the DOL was unable to determine whether the salary threshold was satisfied. As a result, the DOL could not make a definitive determination as to whether the position qualified for the learned professional exemption.   

The DOL did, however, directly answer the second part of the inquiry. It concluded that even if the employee satisfied all criteria for the learned professional exemption, the employer could nevertheless lawfully classify them as non-exempt and pay them on an hourly basis. The DOL explained that the FLSA prohibits the misclassification of a non-exempt employee as exempt, but it does not prohibit employers from treating otherwise exempt employees as non-exempt. Stated differently, non-exempt classification is the default classification and employers may elect not to apply an exemption as a matter of lawful business judgment. Accordingly, even where all exemption criteria are met, the burden remains on the employer to assert and defend the exemption, and the employer may choose not to do so. 

Employer Takeaways

This opinion letter was a clear reminder of three points when analyzing exemption classifications: (1) employers must look to the salary basis, salary threshold, and primary duty tests to confirm proper exempt classification, (2) it is the employer’s burden to prove an exemption, and (3) employers are always free to default to a non-exempt classification for any employee.