U.S. Department Of Labor Issues Six Opinion Letters Addressing FLSA And FMLA

Since the enactment of the Fair Labor Standards Act (FLSA) in the late 1930s, the U.S. Department of Labor (DOL) has issued opinion letters as a means of providing guidance to workers, employers, and other stakeholders regarding the application of federal employment laws. These opinion letters serve as official written interpretations, clarifying how applicable laws govern specific factual circumstances presented by individuals and organizations. In addition to providing clarity, such letters afford recipients a potential good faith reliance defense for actions that may otherwise constitute violations, including those under the FLSA. The opinion letter program, however, has experienced periods of both activity and dormancy throughout its history, due in part to different administrations’ viewpoints on the value of such fact-specific letters.

In 2010, for example, former President Barack Obama’s administration suspended the practice of issuing opinion letters, shifting the focus to more broadly applicable “administrator interpretations” that provided more general interpretations of the law, rather than responses to specific workplace questions. In 2017, President Donald Trump’s first administration reinstated the opinion letter practice, issuing letters throughout the administration and reissuing certain previously withdrawn letters. Subsequently, former President Joe Biden’s administration took a more restrained approach, issuing a limited number of new opinion letters and withdrawing certain previously issued letters.

In June 2025, the pendulum swung once again when the DOL under the second Trump administration re-launched the opinion letter program, which now spans five key enforcement agencies within the DOL, providing opinion letters and/or other forms of guidance: 

• The Wage and Hour Division (WHD) (opinion letters);
• The Occupational Safety and Health Administration (letters of interpretation);
• The Employee Benefits Security Administration (advisory opinions and information letters);
• The Veterans’ Employment and Training Service (opinion letters); and
• The Mine Safety and Health Administration (compliance assistance via guidance, regulatory updates, training materials and technical support). 

In January 2026, as part of the re-launched program, the WHD issued the following six opinion letters “designed to promote clarity, consistency, and transparency” in the application of the FLSA and Family and Medical Leave Act (FMLA):

• FLSA2026-1 addresses whether a Licensed Clinical Social Worker whose employer reclassified them from exempt to non-exempt status after losing supervisory responsibilities still qualifies as exempt as a “learned professional” under the FLSA. The letter concludes that while the employee’s duties still qualify the employee for the learned professional exemption, the employer’s decision to pay the employee on an hourly basis rather than on a salary basis disqualifies the employee from the exemption, as the employee no longer meets the exemption’s compensation requirements. The letter also explains that, even if an employee meets all requirements for an exemption, an employer has the discretion to classify that employee as non-exempt, as long as the employer pays the employee at least federal minimum wage for all hours worked and overtime for work in excess of 40 hours in a work week.

• FLSA2026-2 addresses whether certain performance-based incentive bonuses paid to non-exempt employees must be included in the regular rate of pay for overtime calculations under the FLSA. The letter concludes that, because the bonuses are based on pre-determined criteria, they do not qualify as discretionary bonuses excluded by the FLSA from the regular rate. Accordingly, the employer must calculate and pay overtime premiums using a regular rate that includes both base wages and the performance-based incentive bonuses for all applicable work weeks.

• FLSA2026-3 addresses whether a union and employer of emergency dispatch workers can enter into a collective bargaining agreement (CBA) that mandates a 15-minute “roll call” before each shift but exclude that time when calculating overtime premiums under the FLSA. The letter concludes that the 15-minute roll call period would constitute compensable hours worked and would therefore be counted toward the total hours worked each work week for purposes of calculating any overtime pay due. However, depending on the contents and structure of the CBA, overtime compensation may not be required for this time under the FLSA, which provides for partial overtime exemptions for workers employed under bona fide CBAs in specific circumstances.

• FLSA2026-4 clarifies that, for purposes of the FLSA’s exemption from overtime pay for certain retail or service establishment commission-paid employees, employers must use the federal minimum wage (currently $7.25/hour) to determine if the employee’s regular rate exceeds one and one-half times the minimum wage, regardless of any higher state or local minimum wage. Additionally, although tips are not commissions under the exemption, in some circumstances, a portion of an employee’s tips would be compensation for purposes of determining whether an employee is primarily paid by commission under the exemption.

• FMLA2026-1 addresses how school closures of less than a full week impact the amount of leave a school employee uses under the FMLA. Applying principles applicable to holiday closures, the letter clarifies that, if an employee is taking FMLA leave for less than a full work week and the school closes for part of that week, the closure days do not count against the employee’s FMLA entitlement unless the employee was scheduled and expected to work those days. However, if an employee is taking FMLA leave for the entire week, the full week counts as FMLA leave, even if the school is closed for part of the week. The calculation is not affected by the specific reasons for the temporary closure, whether the closure was planned or unplanned, or whether there are scheduled “make up” days.

• FMLA2026-2 clarifies that, when an eligible employee travels to or from a health care provider for a medical appointment regarding the employee’s own serious health condition or a serious health condition of a covered family member, the employee may take FMLA leave not only for the actual appointment, but also for the time traveling to or from the appointment. However, FMLA-protected leave for travel time does not encompass travel to or from, or stops for, other unrelated activities. Further, the medical certification supporting the FMLA leave need not specify travel time to or from the appointment for the certification to be complete and sufficient under the FMLA.

These letters, as well as prior opinion letters issued by the DOL, offer valuable insight to help employers and employees navigate nuanced issues under federal employment laws, including the FLSA and FMLA. As the DOL continues its compliance assistance efforts, stakeholders should stay informed about new developments to ensure their workplace practices remain in line with evolving regulatory interpretations.

If complex workplace questions arise, stakeholders may submit opinion letter requests via the DOL’s Opinion Letters website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.