Publication
Exempt by Day, Hourly by Night: New DOL Guidance for When Salaried Employees Pick Up Hourly Shifts
As temperatures rise and summer schedules firmly take hold, employers may find themselves short-staffed and in need of extra coverage. Rather than hiring additional workers, some employers may turn to existing employees to cover extra night or weekend shifts — helping the business address staffing needs while giving employees an opportunity to earn additional income.
While this arrangement may be beneficial, the additional hours raise important wage-and-hour questions. What happens when the employee picking up extra work is a salaried exempt employee? Does the Fair Labor Standards Act (FLSA) prohibit such an arrangement?
The U.S. Department of Labor (DOL) recently addressed this issue in Opinion Letter FLSA2026-5. According to the DOL, a salaried exempt employee may pick up hourly shifts, but employers engaging in this practice should be aware of FLSA complications that may arise and take steps to prevent the employee from losing their exempt status.
The Complication: FLSA Overtime Issues
The FLSA establishes wage, recordkeeping, and employment standards for businesses operating in the United States.2 As part of the FLSA, nonexempt employees must receive overtime pay for any hours worked over 40 in a given week. At a minimum, that overtime rate must be “one and one-half times” the employee’s regular rate of pay.3
That overtime pay is valuable, but not all employees are eligible for it. For example, under FLSA Section 13(a)(1), employees who work in a “bona fide executive, administrative, or professional capacity” and meet the applicable salary basis and duties tests are exempt from the overtime and minimum wage requirements.”4
While the FLSA does not prohibit an exempt employee from performing additional hourly work, the arrangement can compromise the employee’s exempt status if the additional work changes the nature of the employee’s role. If an employee loses exempt status, their employer may be required to pay that employee overtime — creating additional expenses and hour-tracking issues.5 The key question, then, is how to preserve an employee’s exempt status when permitting additional hourly work.
The Department of Labor’s Guidance
The DOL’s guidance makes clear that an exempt employee does not lose exempt status simply because the employee picks up additional hourly work.6 If, however, an exempt employee’s extra shifts performing nonexempt work begin to monopolize their working time then, that employee is at risk of losing their exempt status.7 In sum, the DOL’s guidance can be broken down into a few key takeaways.
Takeaway 1: How to qualify as an exempt executive, administrative, or professional employee.
To qualify for the Section 13(a)(1) exemption, an employee must satisfy both a duties requirement and a salary requirement. First, the employee’s primary duty must be exempt work. Second, the employee must be paid on a salary basis at or above the required salary level. Those requirements are addressed in greater detail in 29 C.F.R. Part 541.8
Takeaway 2: How an exempt employee can perform nonexempt work.
Once an employee is exempt, the Opinion Letter confirms that an exempt employee can take on additional nonexempt work.9 To preserve an employee’s exempt status, however, employers should keep the following in mind:
- The employee’s primary duty should remain exempt work. Section 13(a)(1) requires an employee’s primary duty to be exempt work. While much goes into this analysis, time spent performing exempt work is an important consideration, with employees who spend more than half of their time doing exempt work generally satisfying the exemption. Other considerations include, but are not limited to, the extent of supervision over an employee and the importance of the exempt work when compared to other duties assigned to the employee.10
- Some overlap between the roles of an exempt and nonexempt employee is permitted. An exempt employee’s role does not need to be completely different from a nonexempt role. Some overlap of job responsibilities is permitted and, standing alone, should not defeat the exemption.11
- Paying hourly compensation for additional work does not, by itself, defeat the salary-basis requirement of Section 13(a)(1). As long as the exempt employee continues to receive a full predetermined salary for their exempt role each week, additional hourly pay for nonexempt shifts is permissible “additional compensation” and should not affect exempt status.12
- Compensation for additional nonexempt work is generally left to the employer. Employers may compensate additional nonexempt work in different ways, including flat-sum payments, bonuses, hourly payments, or other forms of additional compensation. Also, while an employer may provide extra compensation for additional hourly shifts, the FLSA does not require it if the employee remains properly classified as exempt.13
What Should Employers Consider?
Employers using such an arrangement should consider evaluating each affected employee’s role to ensure continued compliance with the applicable exemption. Specifically, employers should consider:
- Tracking the hours worked in the additional nonexempt role, and regularly comparing that to the amount of exempt work the employee is performing;
- Requiring advance review and written approval before exempt employees pick up hourly shifts;
- Limiting the amount or frequency of additional shifts an exempt employee may work;
- Documenting each exempt employee’s primary duties and the separate duties of the additional role, in updated job descriptions;
- Confirming that the employee continues to receive the required predetermined salary for the exempt role; and
- Reviewing applicable state and local wage-and-hour laws, which may impose different or additional requirements, depending on the employee’s location.
While no one factor is determinative, exempt status generally depends on the employee’s actual duties and compensation structure. Thus, employers should periodically review these arrangements to ensure the employee’s primary duty remains exempt work and the salary basis requirement is preserved.
In addition, while the DOL’s Opinion Letter is instructive, it is not a definitive legal shield for employers. The DOL can withdraw or revise an Opinion Letter at any time. In addition, courts can find agency Opinion Letters persuasive, but they are not binding authority. Employers are best served by viewing Opinion Letters as one element of a broader wage-and-hour compliance strategy.
Footnotes
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The authors thank Snell & Wilmer summer associate Ethan Scott for his valuable work on this Legal Alert. Ethan is not admitted to practice law.
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U.S. Dep’t of Lab., Wages and the Fair Labor Standards Act, https://www.dol.gov/agencies/whd/flsa (last visited July 2, 2026); U.S. Dep’t of Lab., Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA), Wage and Hour Division (Sept. 2019), https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime.
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U.S. Dep’t of Lab., Opinion Letter FLSA2026-5, at 2 (May 28, 2026) (citing 29 U.S.C. §§ 206(a), 207(a)).
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Id. at 2–3 (citing 29 U.S.C. § 213). There are numerous other exemptions available under the FLSA, which are beyond the scope of this Legal Alert.
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See id. at 5.
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Id. at 4–5.
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Id. at 6.
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29 C.F.R. Part 541; U.S. Dep’t of Lab., Opinion Letter FLSA2026-5, at 2–4 (May 28, 2026).
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U.S. Dep’t of Lab., Opinion Letter FLSA2026-5, at 4–6 (May 28, 2026).
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Id. at 3 (citing 29 C.F.R. § 541.700).
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Id. at 4–6.
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Id. at 5–6; 29 C.F.R. § 541.604.
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U.S. Dep’t of Lab., Opinion Letter FLSA2026-5, at 4–6 (May 28, 2026); 29 C.F.R. § 541.604.
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