The U.S. Department of Labor's (DOL) Wage and Hour Division recently published six new Opinion Letters (or Letters) addressing the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Although Opinion Letters are not binding statements of law, they provide insight into the DOL's enforcement priorities and compliance expectations. When faced with certain federal claims, employers may also rely on these Letters to establish a "good faith defense." Below is a brief summary of the new Letters.
FLSA Guidance
Exempt status and reclassification (FLSA2026-1)
The question presented is whether a Licensed Clinical Social Worker meets the criteria for the "learned professional" exemption under the FLSA—thus exempting them from minimum wage and overtime pay—and if so, whether an employer is nevertheless permitted to classify the Social Worker as non-exempt. As a general matter, and as reiterated in the Opinion Letter, employers retain discretion to classify employees as non-exempt even if they could satisfy an exemption. "The FLSA only prohibits the misclassification of a non-exempt employee as an exempt one."
To qualify for the "learned professional" exemption under the FLSA, an employee must meet both a "duties test" and a "salary test." The duties test is satisfied when the employee's "primary duty" involves performing work that requires advanced knowledge in a field of science or learning, typically acquired through prolonged specialized education. The salary test is satisfied when the employee is paid on a salary basis, earning at least the salary threshold set by the DOL. The DOL explained that Social Workers with master's degrees who make clinical assessments and psychosocial evaluations, plan treatments, and participate in interdisciplinary care teams generally use their advanced knowledge in a field of science and learning and, therefore, usually meet the FLSA's "duties test." But, if that Social Worker is paid on an hourly basis, they would no longer be classified as exempt because they fail the "salary basis" requirement. Thus, the employer must classify the Social Worker as non-exempt in that situation.
Bonuses and the regular rate of pay (FLSA2026-2)
The question presented is whether the FLSA permits an employer to exclude certain bonus payments from an employee's regular rate of pay. In the fact pattern addressed by the Opinion Letter, a waste management employer paid non-exempt drivers a base hourly wage plus incentive bonuses tied to predefined safety, attendance, and performance criteria. The bonus plan was communicated in advance and used specific formulas to determine both eligibility and amounts.
Although the employer initially exercised discretion in creating the bonus plan, it relinquished discretion over the payments by establishing predetermined criteria that automatically triggered bonus payments once met. The DOL found that the bonuses were not discretionary because the drivers could reasonably expect the bonus payments upon satisfying the predetermined criteria. The employer was, therefore, required to include the bonus amounts in the employees' regular rates of pay and to recalculate overtime premiums accordingly.
Pre-shift roll call time and collective bargaining agreements (FLSA2026-3)
The question presented is whether, in the case of 911 dispatchers, a union and an employer can enter into a collective bargaining agreement (CBA) that mandates a 15-minute "roll call" before each scheduled shift but exclude that time when calculating overtime. The DOL explained that the mandatory 15-minute pre-shift roll call constitutes compensable time worked, but the employer and union could structure the CBA to provide for a partial overtime exemption under FLSA section 7(b)(1) or 7(b)(2), which specifically pertain to certain CBA-covered employees. If properly structured, the provisions could reduce or eliminate overtime liability for the roll call time.
Commissioned employee exemption (FLSA2026-4)
The Opinion Letter addresses the overtime exemption for certain employees of retail or service establishments. The exemption applies to any employee of a retail or service establishment whose (1) regular rate of pay exceeds one and one-half times "the minimum hourly rate applicable" and (2) compensation for a representative period is composed of more than 50% commissions.
The first question presented is whether the "minimum hourly rate applicable" is the federal minimum wage or a higher state minimum wage, to the extent the employee works in a state that provides a higher minimum wage. The DOL explained that the "minimum hourly rate applicable" is the federal minimum wage.
The second question presented is whether tips count as compensation when determining if more than half of the purportedly exempt employee's earnings come from commissions. The DOL explained that tips are not considered "commissions" under the exemption, because tips are discretionary and gratuitously provided by a customer and are not employer-provided renumeration tied directly to sales of goods or services. However, a portion of tips may count as "compensation" to the extent the employer uses those tips for a tip credit to satisfy a wage obligation. In such cases, the amount of tips used in the tip credit must be included in the compensation total for the representative period when determining if commissions exceed 50 percent of total compensation for the purposes of exemption eligibility.
FMLA Guidance
School closures and leave usage (FMLA2026-1)
The question presented is how a school closure of less than a full week (e.g., a snow day) impacts the amount of leave a school employee uses under the FMLA. When an employee takes intermittent leave or leave that is less than a full workweek, closure days generally do not count against the employee's entitlement. By contrast, if the employee is on leave for a full workweek, then even a school closure of less than a week does not change the calculation—the employer may deduct a full week of FMLA leave from the employee's entitlement. Whether the closure is planned or unplanned, and whether the school schedules "make-up" days later, does not affect how FMLA leave is counted for the period of the closure.
Travel time for medical appointments (FMLA2026-2)
The question presented is whether FMLA leave may be used for time spent traveling to and from medical appointments, and whether a medical certification must address travel to and from the appointment. The employee's time spent traveling to and from a medical appointment related to the employee's own serious health condition or to accompany a family member with a serious health condition is considered part and parcel of obtaining care and, therefore, may be counted as FMLA leave. Travel time that is not related to the serious health condition (e.g., running errands after a medical appointment) is not covered. A healthcare provider's medical certification need not address travel time.
Employers with questions regarding their classification practices, pay structures, collective bargaining agreements, and FMLA administration may contact the authors of this article or any other attorney in Venable's Labor and Employment Group.