On May 28, 2026, the U.S. Department of Labor (DOL) published Opinion Letter FLSA2026-5, confirming that an employee who is otherwise exempt under the Fair Labor Standards Act (FLSA) can perform additional work in a secondary nonexempt role at an hourly rate without losing their exempt status.
Keep in mind that DOL opinion letters are formal, written guidance explaining how the agency would apply the FLSA to the facts presented. They are a helpful compliance tool that can be persuasive authority in a lawsuit, but they are not binding on courts, which may come to a different conclusion than the DOL.
Under the FLSA, employees may be exempt from the FLSA’s minimum wage and overtime requirements under its executive, administrative or professional exemptions if they satisfy the following requirements:
- The employee must be compensated on a salary basis at a rate equal to or exceeding the exempt salary threshold specified under federal law (currently $684 per week/$35,568 per year).
- The employee’s primary duty must be the performance of exempt work.
In the letter, the employer, a medical center, employs staff in various positions, including “Staff Nurse,” a nonexempt position paid on an hourly basis, and “Nursing Professional Development Specialist,” an exempt position paid on a salary basis at a rate of approximately $2,000 per week.
The staff nurse’s main functions include formulating clinical decisions for patients, serving as an advocate, assisting in orientation of new employees and delegating tasks to other personnel. And the development specialist’s main functions include identifying gaps in learning opportunities, designing educational programs, onboarding new staff, advancing the professional development of all staff and conducting ingoing competency processes.
A specialist might perform the same interventions as a staff nurse, including assisting and educating staff nurses, but a specialist doesn’t replace a staff nurse as a patient’s primary nurse. Specialists exercise significant autonomy and apply independent judgment when providing support to nurses.
Specialists often voluntarily pick up shifts as staff nurses, typically one to two 12-hour shifts per week on weekends in addition to the approximately 40 hours they work in the specialist role. When specialists work the staff nurse shifts, they are paid an hourly rate in addition to their fixed salaries as specialists. The shifts make up 23-38 percent of the specialists’ total hours worked per week. The question presented to the DOL is whether employing someone in this dual capacity impacts their exempt status under the FLSA.
The DOL concluded that the specialist’s choice to take on extra staff nurse shifts at an hourly rate didn’t change their exempt status. The specialists’ pay met the salary basis requirement, and their primary duty remained the performance of exempt work. The DOL explained that when the specialist picks up one or two staff nurse shifts per week, a substantial majority of the employee’s time is spent in the specialist role, which satisfies the primary duty requirement.
What Does This Mean for California Employers?
For California employers, the DOL’s opinion letter doesn’t carry much weight. As mentioned above, this letter is the agency’s formal guidance, but it isn’t binding on courts. It’s also less relevant to California employers because it’s based on federal law, not California law.
Though California’s white-collar exemptions are similar to FLSA exemptions, and California courts can look to federal wage-and-hour regulations for guidance, there are some differences, and California employers should take care to ensure that they are properly classifying their exempt employees under California law.
If you find it challenging to determine which of your employees are exempt, CalChamber’s Wage & Hour 101: Exempt Employees webinar on Thursday, June 18, 2026, from 10 a.m. to 11:30 a.m. can help. Our employment law experts will have a detailed discussion of key exemptions that can apply to California employees, as well as practical guidance on how to classify and pay exempt employees. Register now!
Employers that may be interested in allowing their exempt employees to occasionally perform nonexempt work for extra hourly pay should consult with legal counsel first to determine how that work might impact their exempt status under California law.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
CalChamber members can read more about Fair Labor Standards Act in the HR Library. Not a member? See how CalChamber can help you.
