US Department Of Labor Publishes Three Pro-Employer, One (Somewhat) Pro-Worker, Opinion Letters

Seyfarth Synopsis: On May 28, 2026, the U.S. Department of Labor (DOL) published four new opinion letters, covering situations including: (1) whether an exempt worker may perform non-exempt work; (2) whether a bonus structured as a percent of total earnings needs to include an overtime “true up”; (3) whether time spent traversing an employer’s premises to eat off site is compensable; and (4) whether an employer’s timekeeping practice of rounding, while also permitting pre-shift activities, was lawful.

The DOL’s opinion letter program aims to help employers and businesses make sense of the FLSA’s rules and regulations, and how they apply to specific factual situations. This program is clearly a priority for the current DOL. In the press release announcing the (re-)launch¹ of the DOL’s opinion letter program, now Acting Secretary Keith Sonderling commended opinion letters as “an important tool in ensuring workers and businesses alike have access to clear, practical guidance.”² Many employers and businesses agree, and stakeholders should welcome the recent launch of four new opinion letters.

The newly issued opinion letters cover the following issues:

• 2026-05: An exempt employee can perform additional work in a secondary, non-exempt role without altering their exempt status under the FLSA.
• 2026-06: A quarterly bonus that is a percentage of the business’s total earnings provides for the simultaneous payment of overtime compensation due on the bonus, and no further overtime payments are required.
• 2026-07: Time spent traversing an employer’s premises during a meal period remains part of a bona fide meal period under 29 C.F.R. § 785.19.
• 2026-08: A hospital’s practice of permitting early clocking-in, rounding, and permitting pre-shift work on various activities, likely resulted in at least some uncompensated working time.

The DOL’s Opinion Letter Program

Given the accelerated pace of DOL opinion letter activity in 2026, employers, businesses and other stakeholders should take a moment to size up the DOL’s opinion letter program as a whole.

The DOL’s opinion letter program allows members of the regulated community, including organizations, employers, and businesses as well as workers, to request the DOL’s opinion on the application of the law to a specific factual scenario. DOL opinion letters, and in particular, opinion letters issued by the Wage and Hour Division (WHD), the sub-agency of the DOL that enforces the FLSA, carry several benefits:

• WHD opinion letters signal the enforcement policies and priorities of the WHD, a well-resourced enforcement agency with the broadest scope of any wage and hour agency in the country.
• WHD opinion letters also have legal significance in certain situations, because they can constitute a “written administrative regulation, order, ruling, approval, or interpretation” that may entitle an employer to the protection of 29 U.S.C. § 259.
• WHD opinion letters are “available as reasoned analyses at least on par with a law review article or an unpublished judicial decision.”³

In short, opinion letters clarify the law and enforcement environment for stakeholders. They are well worth paying attention to. They also represent a priority for the DOL’s current administration in general, and in particular, for now Acting Secretary Keith Sonderling, who as mentioned previously, is a proponent of the opinion letter program, and has extensive experience with the WHD in particular.

With the release of the four most recent letters, the total for 2026 increases to eight, bringing the cumulative total for the current Administration to thirteen. This indicates an accelerating pace, although the WHD in President Trump’s second term is still far short of matching the nearly 80 opinion letters that WHD issued in his first term.

WHD 2026-05

Question Presented: May an exempt Nursing Professional Development Specialist pick up shifts as a non-exempt Staff Nurse, even when those shifts account for up to 38% of hours worked in certain weeks?

Conclusion: The DOL concluded that an exempt employee may perform additional non-exempt work—such as in a secondary role—without losing their exempt status, so long as certain conditions are met.

Key Reasoning: The key takeaway is that the primary duty test remains the central focus, rather than the proportion of time spent on non-exempt tasks. The employee must continue to satisfy the salary basis test, and their primary duty must consist of exempt work. The DOL noted that while time spent can inform the analysis, time alone is not determinative, though spending over 50% of time on exempt work generally supports exemption. Additionally, salaried employees may receive extra compensation without losing exempt status, provided they are guaranteed at least the minimum required weekly salary under 29 C.F.R. § 541.604(a).

Takeaways: The analysis is fact-specific, as the opinion itself emphasizes that its conclusions are based on the particular “circumstances presented.” Accordingly, employers must carefully evaluate each situation to ensure it is analogous before relying on the guidance. Employers should ensure that the employee’s most important responsibilities continue to be exempt work, even if they spend a meaningful portion of time performing non-exempt duties, and that they satisfy all other requirements for any particular exemption.

WHD 2026-06

Question Presented: Does a quarterly payment that constitutes a “percentage of total earnings” bonus that provides for the simultaneous payment of any overtime compensation due on the bonus comply with the FLSA’s overtime provisions?

Conclusion: The DOL concluded that a quarterly bonus calculated as a percentage of total earnings—including both straight-time and overtime—can satisfy overtime obligations without requiring a separate “true-up” recalculation, provided it is properly structured.

Key Reasoning: Under the FLSA, the default rule is that most non-discretionary bonuses must be included in the employee’s “regular rate of pay,” which typically requires employers to go back and recalculate overtime for the period the bonus covers. However, 29 C.F.R. § 778.210 creates an exception for bonuses based on a percentage of total earnings, so long as the percentage applies uniformly to both straight-time and overtime pay. In that circumstance, the overtime premium is already embedded in the bonus calculation. In the example analyzed by the DOL in its letter, employees receive a share of a bonus pool based on their proportion of pay to total company earnings, which inherently incorporated overtime into the calculation and satisfied the requirement that overtime be compensated “simultaneously.” The DOL noted that total earnings must include both straight-time and overtime pay, while excluding items not part of the regular rate, such as discretionary bonuses, gifts, expense reimbursements, or benefit contributions.

Takeaways: The DOL emphasized, however, that this structure must genuinely reflect overtime compensation and cannot be used to disguise underpayment, requiring a careful analysis of whether the formula truly accounts for overtime pay. The DOL also noted that a bonus pool that uses a metric other than the percent of gross sales revenue for the quarter would potentially comply with 778.210, including a “methodology tied to the employer’s quarterly profits or available financial assets.”

WHD 2026-07

Question Presented: Must an employer consider time an employee spends traveling off-site voluntarily for a meal when determining whether the meal period is compensable under 29 C.F.R. § 785.19?

Conclusion: The DOL concluded that the meal period was non-compensable because it met all the criteria of a bona fide meal period: it was at least 30 minutes in length, employees were fully relieved from duty, the time was uninterrupted, and it could be entirely used for personal purposes on or off-site.

Key Reasoning: The opinion letter addresses whether a 30-minute unpaid meal period becomes compensable work time when employees at a secured facility lose a portion of that break if they choose to leave the premises. In the scenario presented, employees worked at a large facility with controlled entry and exit points and parking located a considerable distance from work areas. While the employer provided a full 30-minute uninterrupted meal period, employees who elected to leave the premises had to spend 5–10 minutes walking to parking and additional time passing through security checkpoints, leaving only 10–15 minutes for an off-site meal. The DOL evaluated this issue under 29 C.F.R. § 785.19, which requires that a meal period be a bona fide break during which the employee is completely relieved from duty for personal purposes. The agency determined that the employer satisfied its obligations by offering a full, uninterrupted 30-minute break during which employees were entirely relieved of duty and free to remain on-site without restriction or time loss. The fact that employees could voluntarily leave the premises did not alter the analysis, even though doing so reduced the amount of usable break time due to walking and security procedures. The DOL viewed this lost time as incidental to the employee’s personal choice, not as employer-imposed restrictions. It also rejected any requirement that off-site meal periods be practically feasible or free from inconvenience, emphasizing that the FLSA guarantees only a genuine opportunity for relief from work, not an optimal or flexible off-site experience.

Takeaways: The analysis underscores that compensability hinges on employer-imposed restrictions, not employee preferences or voluntary choices. However, the opinion suggests that a different outcome could arise if the employer required employees to perform duties during the break, prohibited meaningful use of the time (outside of the minimal restrictions present in this example such as passing through security), or regularly interrupted the meal period. In such cases, the break might no longer qualify as bona fide, highlighting the importance of ensuring that employees remain fully relieved from duty during meal periods.

WHD 2026-08

Question Presented: Does a rounding policy that rounds clock-in times to the scheduled start time, and late clock-outs backward to the scheduled end time result in the adequate payment of compensable time, where employees engage in pre-shift and post-shift activities at times?

Conclusion: The DOL determined that certain pre-shift activities that employees engaged in were integral and indispensable to employees’ principal duties, making them compensable and marking the start of the continuous workday.

Key Reasoning: The factual scenario involves a large public hospital with approximately 18,000 non-exempt employees who are permitted to clock in up to seven minutes early and/or may clock out late due to bottlenecks at the timeclock. The hospital’s system rounds early clock-ins forward to the scheduled start time and late clock-outs backward to the scheduled end time. Many employees who clocked in early also begin performing job-related tasks—such as clinical preparation—immediately after clocking in early, resulting in work being performed before the scheduled shift without corresponding compensation. Significantly, the employer’s policy also prohibited employees from clocking out before the end of their shift. Accordingly, the example did not present a scenario of neutral rounding in which, for example, employees might lose time due to their hours being rounded up at the start of the shift, while gaining equal or more time at the end of the day if they clocked out early and their time was then rounded forward to the scheduled shift end. Under the FLSA’s “hours worked” standard, employers must pay for all work they “suffer or permit,” including work outside scheduled hours if the employer knows or should know it is occurring. Once employees begin principal work activities, all subsequent time until the end of the workday is generally compensable. The DOL also found that the employer either knew or should have known that employees were performing work before their scheduled shifts and allowed the practice to continue, thereby triggering an obligation to compensate that time.

Takeaways: The key takeaway for employers is that all work performed must be paid regardless of scheduled hours, and even facially neutral policies—such as rounding or early clock-in allowances—can create liability if implemented in a way that permits or perpetuates off-the-clock work. Notably, the DOL also determined that the de minimis doctrine was deemed inapplicable because the pre-shift work appeared to be regular, recurring, and measurable (if the hospital honored their actual versus rounded start time), rather than sporadic or administratively difficult to track. And, the DOL concluded that the hospital’s rounding practices were not neutral in practice due to the policies described above and systematically undercounted compensable time and always benefited the employer. This raised risks of both minimum wage and overtime violations. In contrast, end-of-shift rounding may be permissible if employees are not performing work after their shift end time and the extra time is only compromised of time spent waiting in line to clock-out.

Conclusion

As noted above, the release of these four additional letters brings the cumulative total for the current Administration to thirteen, reflecting an accelerating pace of opinion letter issuance. Stakeholders should therefore anticipate a continued increase in opinion letter activity and, where appropriate, consider pursuing requests when a strong opportunity arises.

Footnotes

1. Opinion letter issuance has ebbed and flowed across presidential administrations. For example, some administrations (e.g., Obama-era) suspended or replaced them with broader guidance (Administrator’s Interpretations). More recent years (e.g., Biden-era) saw very limited issuance of opinion letters. The current Administration is actively utilizing the DOL opinion letter program and did so during Trump’s first term, as did the Bush administration.

2. https://www.dol.gov/newsroom/releases/osec/osec20250602.

3. Keith E. Sonderling & Bradford J. Kelley, The Sword and the Shield: The Benefits of Opinion Letters by Employment and Labor Agencies, 86 Mo. L. Rev. 1171 at 1190 (2022). The reader should note that this analysis was co-authored by Acting Secretary Sonderling.

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