DOL Updates
DOL Issues New FLSA Opinion Letters
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APPLIES TO As Indicated |
EFFECTIVE MAY 29, 2026 |
QUESTIONS? Contact HR On-Call |
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Discussion
On May 29, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division published four opinion letters addressing certain wage-and-hour issues under the Fair Labor Standards Act (FLSA), including meal breaks, pre- and post-shift activities, dual-role employee classification, and overtime-compliant bonus pools. While not binding law and typically tied to specific fact patterns, these opinion letters reflect the agency’s interpretation and provide insight into potential enforcement strategies. Key takeaways from each are summarized below.
FLSA2026-5 | Dual-Role Employee. The DOL addressed whether an employee who primarily holds an overtime-exempt role may also perform additional work in a nonexempt capacity without losing exempt status. In the scenario prompting the opinion letter, an academic medical center had nursing professional development specialists (a typically exempt role) sometimes perform work as staff nurses (a nonexempt role). The DOL clarified that when an employee works in both exempt and nonexempt capacities in the same workweek, the employee may retain exempt status if the exempt role constitutes the employee’s primary duty.
In the scenario presented, the specialists spent approximately 62–77% of their total weekly hours in the exempt role, which the DOL determined to satisfy the “substantial majority” standard for the primary duty test in this case. The salary basis requirement was also satisfied because the specialists received their guaranteed salary at or above the required minimum level regardless of hours worked, and the FLSA expressly permits employers to provide exempt employees additional compensation for hours beyond the normal workweek without violating the salary basis requirement. Notably, the DOL indicated that the additional compensation for nonexempt work need not be paid on an hourly basis, instead suggesting that it may be paid as a flat sum or on any other basis. Employers should keep in mind that this will remain a fact-specific determination that may vary from case to case.
FLSA2026-6 | Bonus Pools. When calculating overtime pay for nonexempt workers, an employee’s regular rate of pay must include all remuneration for employment paid in the workweek, divided by total hours worked, and nondiscretionary bonuses must be factored into that calculation. However, a re-computation of the regular rate is not required when a bonus qualifies as a “percentage of total earnings” bonus, meaning one where the overtime premium is already embedded in the formula by virtue of including both straight-time and overtime earnings in the calculation base. The DOL addressed a quarterly bonus pool arrangement under which each employee’s share was determined by comparing that employee’s total gross compensation (straight-time plus overtime) to the aggregate gross compensation of all employees in the pool, with each participant receiving a proportionate share. The DOL confirmed this arrangement qualifies as a permissible percentage-of-total-earnings bonus and does not require a regular rate re-computation, even though each employee receives a different percentage of the pool. Employers should note, however, that if a bonus arrangement merely claims to be a “total earnings” bonus without evidence that the calculation genuinely includes both straight-time and overtime earnings, the DOL will scrutinize whether it is being used as a device to evade the FLSA’s overtime requirements.
FLSA2026-7 | Meal Breaks. Under the FLSA, a bona fide meal break is not compensable time when a nonexempt employee is completely relieved of all work duties. In response to a question from an employer operating a large facility with controlled access points and work areas located far from parking, the DOL confirmed that employees are not entitled to compensation for meal periods simply because the facility’s physical layout makes it difficult to leave the premises during the break. The DOL noted that being required to eat on-site, or being subject to minimal restrictions during the break, does not convert a meal period into compensable time. Employers are also not required to extend a standard thirty-minute meal period to account for travel time within or away from the worksite. Employers should be aware that applicable state meal break laws may impose stricter requirements.
FLSA 2026-8 | Pre-Shift and Post-Shift Activities. Under the FLSA, employees must be compensated for pre- or post-shift activities that are integral and indispensable to their principal work duties. In this particular scenario, the DOL addressed a hospital setting in which workers performed several pre-shift activities, including receiving patient handoff reports, locating work assignments, completing accountability documentation, and being assigned to work locations via communication devices. The DOL clarified that some of these activities, specifically, receiving handoff reports and locating work assignments, are likely compensable time because they are integral and indispensable to the employee’s principal duties. However, the DOL noted it was unable to draw broad conclusions regarding other pre-shift administrative activities without a fuller understanding of the employees’ specific principal job duties, underscoring that this remains a highly fact-specific analysis.
The opinion letter also addressed the employer’s practice of rounding early clock-ins up to the scheduled shift start time. The DOL identified two conditions that must be met for such rounding to be permissible: (1) no compensable pre-shift work is performed during the rounding window, and (2) an evaluation of the rounding practice over time demonstrates that it does not systematically undercompensate employees. The DOL further noted that the employer’s prohibition on early clock-outs was not problematic in this instance because there was no indication that employees were performing compensable work after their paid shifts ended. On the de minimis doctrine, the DOL cautioned that where employees perform compensable pre-shift work on a daily, predictable basis, such time is “unlikely” to qualify as de minimis. Employers should also be aware that technological advances have made it increasingly practicable to track employee work time with precision, meaning reliance on the de minimis doctrine will face greater scrutiny going forward. Importantly, this opinion letter addresses federal law only, so employers should be mindful of state laws that may be more restrictive.
Action Items
- Review dual-role employee classifications with legal counsel.
- Review bonus pool structures for compliance.
- Review meal break policies and practices for compliance with compensability requirements.
- Audit pre-shift and post-shift activity practices for compliance with compensability requirements.
- Consult with legal counsel on time rounding practices.
- Have appropriate personnel trained on applicable wage and hour requirements.
DOL Reinforces English Language Proficiency Requirements for Foreign CMV Drivers
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APPLIES TO As Indicated |
EFFECTIVE JUN 13, 2026 |
QUESTIONS? Contact HR On-Call |
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Discussion
On May 14, 2026, the DOL’s Office of Foreign Labor Certification (OFLC) issued Frequently Asked Questions (FAQs) clarifying employer obligations when hiring foreign workers to operate commercial motor vehicles (CMVs). The guidance is set to take effect on June 13, 2026, and applies prospectively to filings made on or after that date.
Under existing federal regulations, the Federal Motor Carrier Safety Administration (FMCSA) prohibits individuals, including foreign nationals, from operating a CMV unless they satisfy a specific set of qualifications, one of which is the ability to read and speak English sufficiently to converse with the general public, understand highway traffic signs and signals in English, respond to official inquiries, and make entries on reports and records. The OFLC’s new guidance clarifies that this English language proficiency (ELP) standard must be explicitly stated in all job orders and applications for temporary or permanent labor certification for positions that involve CMV operation. While many employers already include some iteration of the ELP standard in their filings, the guidance is intended to ensure uniformity across all employers seeking to hire foreign workers as CMV operators.
The FAQs provide model language that satisfies the ELP requirement, explaining that a compliant job order or labor certification application should state: “The worker must be able to read and speak the English language sufficiently to converse with the general public, understand highway traffic signs and signals in English, respond to official inquiries, and make entries on reports and records.” Employers may also include additional details, such as an advisement that prospective drivers will not be permitted to use translation tools, including interpreters, smart phone applications, I-Speak cards, or cue cards, during the ELP assessment.
If a job order or labor certification application involves a position requiring CMV operation and does not include a compliant ELP standard, the DOL will issue a Notice of Deficiency. If the employer does not correct the filing, the application may be denied under the regulations governing the applicable program (e.g., H-2A, H-2B, CW-1, and PERM programs). Employers should also be aware that although FMCSA regulations provide certain exemptions from commercial driver’s license (CDL) requirements, particularly in the agricultural industry, the ELP standard continues to apply to all drivers operating a CMV in interstate commerce, regardless of whether a CDL is required.
Action Items
- Review and update covered job orders, labor certifications, and job descriptions for compliance with ELP requirements.
- Consult with legal counsel on specific ELP application questions.
- Have appropriate personnel trained on the requirements.
DOL Issues Enforcement Guidance for Pension Benefit Statements
On May 12, 2026, the DOL’s Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin (FAB) No. 2026-02, providing temporary enforcement relief for retirement plan administrators navigating the new paper pension benefit statement requirements added by the SECURE 2.0 Act of 2022. Effective for plan years beginning after December 31, 2025, SECURE 2.0 requires defined contribution plans to furnish at least one pension benefit statement on paper per calendar year, and defined benefit plans to furnish at least one paper statement every three calendar years. The DOL issued a proposed rule on February 25, 2026, addressing these requirements, but final regulations have not yet been issued. Under the temporary enforcement policy established by the FAB, the DOL will not take enforcement action against plan administrators that make good faith efforts to comply with a reasonable interpretation of either the proposed rule or Section 105(a)(2)(E) of ERISA pending final guidance. The existing electronic delivery safe harbors continue to apply for participants and beneficiaries who became eligible on or before December 31, 2025. For those who became eligible on or after January 1, 2026, the proposed rule contemplates a one-time initial paper notice informing them of their right to request that all documents be furnished on paper before electronic delivery of pension benefit statements begins.
DOL Restores 2019 Salary Thresholds for FLSA Overtime Exemptions
On May 14, 2026, the DOL’s Wage and Hour Division (WHD) announced a technical amendment formally rolling back the 2024 salary thresholds for the FLSA and restoring the 2019 salary levels. The 2024 rule had substantially raised the salary thresholds for the executive, administrative, and professional exemptions as well as the highly compensated employee exemption, but was vacated by a federal district court in November 2024. The DOL subsequently dismissed its appeal in anticipation of this amendment. As a practical matter, this technical amendment does not alter current enforcement posture, as the WHD has applied the 2019 thresholds since the 2024 rule was vacated. That said, it does provide formal regulatory certainty as to the applicable salary levels. Under the restored regulations, executive, administrative, and professional employees must be paid a salary of at least $684 per week, and highly compensated employees must receive a minimum threshold of $107,432 per year.
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