USDOL Issues Six New Wage & Hour Opinion Letters: What Employers Should Know

The U.S. Department of Labor’s Wage and Hour Division has released six new opinion letters addressing recurring compliance questions under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). While opinion letters are fact-specific, they provide valuable insight into how the DOL interprets and enforces federal labor standards in real-world scenarios. Below is a practical, employer-focused summary of each letter and its broader implications.

FLSA2026-1: Learned Professional Exemption and Reclassification

This letter examines whether an employee’s role qualifies for the learned professional exemption under the FLSA and clarifies that even if a position meets the exemption criteria, an employer may still choose to classify the employee as non-exempt. The opinion reinforces that exemptions are permissive, not mandatory, and that employers retain discretion to adopt more conservative classification strategies. For employers, this provides flexibility to reclassify roles in response to litigation risk, operational needs, or workforce changes—so long as minimum wage and overtime obligations are met.

FLSA2026-2: Bonus Payments and the Regular Rate of Pay

This opinion letter addresses when bonus payments may be excluded from the regular rate of pay under section 7(e) of the FLSA and how overtime must be calculated when bonuses must be included. The DOL emphasizes that the nature and purpose of the bonus—not its label—controls whether it can be excluded. Where inclusion is required, the letter provides guidance on allocating bonuses across the applicable workweeks to calculate overtime correctly. Employers are reminded that incentive programs should be reviewed carefully to ensure overtime calculations remain compliant.

FLSA2026-3: “Roll Call” Time and Overtime Calculations

In this letter, the DOL evaluates whether a collective bargaining agreement can require employees to attend a mandatory 15-minute pre-shift roll call while excluding that time from overtime calculations. The opinion underscores that hours worked under the FLSA cannot be waived or excluded by agreement, even in a unionized setting. If roll-call time qualifies as compensable work time, it must be counted toward overtime thresholds, regardless of contractual language. This serves as an important reminder that CBAs must still align with federal wage and hour law.

FLSA2026-4: Commissioned Employee Overtime Exemption (Section 7(i))

This opinion letter addresses two critical questions for employers relying on the retail or service establishment exemption for commissioned employees. First, in states with a higher minimum wage, the DOL explains whether employers must use the state or federal minimum wage when assessing compliance with the exemption’s minimum pay requirement. Second, the letter clarifies whether tips may count as compensation for purposes of determining whether more than half of an employee’s earnings come from commissions. The guidance highlights the need for careful wage calculations, particularly in tipped and multi-state workforces.

FMLA2026-1: School Closures of Less Than a Full Week

This FMLA opinion letter clarifies how to calculate leave usage when a school closes for part of a week, such as for holidays or short breaks. The DOL explains that when an employee would not otherwise be required to work due to a school closure, those days generally do not count against the employee’s FMLA entitlement, unless the employee is taking leave intermittently or on a reduced schedule. For school districts and educational employers, the letter reinforces the importance of tracking leave accurately based on actual work obligations.

FMLA2026-2: Travel Time to Medical Appointments

The final letter addresses whether employees may use FMLA leave for time spent traveling to and from medical appointments. The DOL confirms that travel time may be covered by FMLA where it is medically necessary and related to the treatment, even if the medical certification does not explicitly reference travel. Employers may seek clarification in appropriate circumstances, but the opinion encourages a practical, good-faith approach to administering FMLA leave when the medical need for the appointment itself is established.

Why These Opinion Letters Matter

Collectively, these letters reflect a continued emphasis on substance over form, careful pay calculations, and realistic administration of leave and classification rules. For employers, they underscore the value of proactive compliance reviews, especially in areas involving exemptions, bonuses, union agreements, and leave tracking. While opinion letters are not binding on courts, they provide a meaningful window into how the DOL is likely to approach enforcement in 2026 and beyond.