On May 28, 2026, the U.S. Department of Labor (DOL) issued four new opinion letters addressing various issues related to the Fair Labor Standards Act (FLSA). Two of those letters, FSLA 2026-5 and FLSA 2026-7, came to conclusions particularly relevant to most employers.
FLSA2026-5
The first of these opinion letters, FLSA 2026-5, addresses whether an employee exempt under § 213(a)(1) of the FLSA (the “bona fide executive, administrative, or professional capacity” exception) can perform additional work in a secondary role at an hourly rate and any overtime implications that may arise as a result. In short, the DOL stated that the performance of additional non-exempt hourly work is insufficient to alter an employee’s exempt status under the FLSA, so long as that employee’s primary duty remains the performance of exempt work. This opinion is particularly important for medical care facilities that employ individuals, such as nurses, in a dual capacity, with exempt work as an instructor being their primary duty, with secondary work as an hourly practicing care nurse.
FLSA2026-7
The third letter issued on May 28, FLSA 2026-7, analyzed whether time spent during a meal break voluntarily traversing an employer’s premises and passing through a controlled access entry and exit is compensable under the FLSA. The DOL stated that because an employee was permitted to remain on the premises during their meal break, any time the employee voluntarily spent leaving the premises was not compensable time under the FLSA because the employee is fully relieved of their duties during the meal break.
What does this mean for employers?
Taken together, FLSA 2026-5 and FLSA 2026-7 offer useful guidance for employers navigating two of the more fact-intensive areas of FLSA compliance. For employers utilizing dual-capacity workers—especially in healthcare settings—the DOL has confirmed that secondary hourly work does not automatically strip an employee of exempt status in certain circumstances. Employers should nevertheless audit dual-role arrangements to ensure the characterization will hold up under scrutiny. As for FLSA 2026-7, employers with large facilities with controlled access entry and exit points can take comfort in knowing that a non-exempt employee’s choice to leave the facility during meal breaks does not get “extra” paid time beyond the standard meal break as a result of their voluntary decision to take additional time to traverse and leave the facility. Employers should review their meal break policies to ensure compliance with FLSA Standards.
If you require assistance in determining whether your company’s policies comply with the FLSA, please contact one of Bricker Graydon Wyatt’s Labor & Employment attorneys.
