The U.S. Department of Labor's Wage and Hour Division (DOL) recently published six opinion letters, which provide information about the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). In this series, each Update outlines an opinion letter and discusses the implications for employers.
DOL Affirms Employer Discretion To Classify Learned Professionals as Nonexempt
The DOL clarified that employers may classify "learned professionals" as nonexempt hourly workers even when their duties could qualify them for an exemption. The DOL affirmed that the FLSA sets a floor for wage and overtime requirements and does not compel employers to claim an exemption.
DOL Confirms Nondiscretionary Incentive Bonuses Must Be Included in the Regular Rate for Overtime
The DOL clarified that nondiscretionary incentive bonuses, such as those tied to safety, attendance, or performance under a predetermined plan, must be included in the employee's regular rate when calculating overtime pay under the FLSA.
DOL Clarifies Compensability of Mandatory Roll Call Time Negotiated Under a CBA
Generally, mandatory pre-shift activities provided for in collective bargaining agreements, such as roll call, must be considered compensable work time and factored into overtime calculations under the FLSA. While limited FLSA overtime exemptions may apply, strict statutory requirements must be met, and these pre-shift activities remain compensable regardless of the parties' intent.
Unlocking the FLSA Overtime Exemption: What Retail and Service Employers Need To Know in 2026
The DOL clarifies that the FLSA Section 7(i) overtime exemption applies to retail and service employees who earn more than 1.5 times the federal minimum wage and receive over half their pay from commissions. The DOL further explains that tips are not considered commissions unless a tip credit is used in meeting wage requirements.
DOL Clarifies FMLA Leave Calculation for School Employees During Short-Term Closures
The DOL clarified that when a school closes for less than a full week, such as for weather-related closures, and an employee approved for FMLA leave for less than a full workweek is not scheduled or expected to work due to the closure, that time does not count against the employee's FMLA entitlement for partial-week leave.
DOL Confirms FMLA Coverage for Travel Time to Medical Appointments
The DOL has confirmed that eligible employees may use FMLA leave for travel time to medical appointments for themselves and covered family members. The opinion letter also clarified that the FMLA medical certification does not need to include language about travel duration for the travel to be covered.
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