The U.S. Department of Labor’s (DOL) Wage and Hour Division welcomed the new year by issuing six new opinion letters on January 5, 2026 — four regarding the Fair Labor Standards Act (FLSA) and two regarding the Family and Medical Leave Act (FMLA). As background, opinion letters explain how the DOL applies federal employment laws to various workplace scenarios and serve as a valuable compliance resource for employers. Below is a brief summary of each opinion letter.
Voluntary Reclassification from Exempt to Non-Exempt – FLSA2026-1
The DOL addressed whether a licensed clinical social worker may be reclassified from exempt to non-exempt status under the FLSA even though the role continued to meet the duties and education requirements of the learned professional exemption. The employee was originally classified as a salaried-exempt employee. The employer later underwent an internal restructuring, advising the employee she would be reclassified as non-exempt, paid hourly, and her supervisory duties would be removed. The employee asserted that the role continued to meet the requirements of the learned professional exemption and requested clarification on the reclassification from the DOL. The DOL concluded that removal of supervisory responsibilities does not defeat the exemption if the employee’s primary duties still require advanced knowledge generally obtained through a professional degree. However, exempt status also requires compliance with the FLSA’s compensation requirements, and a change from salary to hourly pay would eliminate the exemption.
Importantly, the FLSA does not require employers to classify employees as exempt even when exemption criteria are met. Employers may choose to classify exempt employees as non-exempt, but if they do so, they must comply with minimum wage and overtime requirements. The FLSA only prohibits misclassifying non-exempt employees as exempt.
Certain Bonuses Must Be Included in the Regular Rate of Pay – FLSA2026-2
This opinion addressed whether incentive bonuses for safety, attendance, compliance, and performance may be excluded from the regular rate of pay for overtime purposes. The DOL reiterated that only discretionary bonuses may be excluded. A bonus is discretionary only if (1) the employer solely determines whether and how much to pay, (2) that determination is made at or near the end of the work period, and (3) the payment is not made pursuant to any prior contract, agreement, or promise creating an expectation of regular payment. The DOL emphasized that the bonuses at issue are non-discretionary because they are calculated under a predetermined incentive plan that sets eligibility and amount in advance, thereby removing the employer’s discretion to pay the bonuses when employees meet the criteria. Accordingly, such bonuses must be included in the regular rate of pay.
Roll Call Time as Hours Worked – FLSA2026-3
The DOL examined whether a 15-minute pre-shift “roll call” required by a collective bargaining agreement (CBA) must be counted as hours worked. The DOL concluded that the time is compensable because, even if it could otherwise be excluded as a non-compensable preliminary activity, non-compensable time may be made compensable by contract — and the proposed CBA did so. Generally, this time must be included in the overtime calculation; however, the DOL noted that the FLSA provides two partial overtime exemptions for certain CBAs, under which the CBA at issue could be structured.
Commissioned Employee Overtime Exemption – FLSA2026-4
The DOL clarified the overtime exemption for commissioned employees of retail or service establishments. To qualify, (1) the employee’s regular rate of pay must be greater than one and one-half times the federal minimum wage; and (2) commissions make up more than 50% of the employee’s compensation for a representative period. The DOL emphasized that the federal minimum wage applies, even where the state minimum wage where the employee lives is higher. Accordingly, to meet the first criteria, an employee’s regular rate must exceed $10.875 ($7.25 (federal minimum wage) x 1.5). Second, the DOL further explained that service charges qualify as commissions, whereas tips do not and are also generally not considered compensation. However, when an employer applies a tip credit toward its minimum wage obligations, those tips are treated as compensation.
FMLA Leave Calculation for School Closure – FMLA2026-1
This opinion addressed how partial-week school closures affect FMLA leave usage. Applying FMLA principles that govern holiday closures, the DOL concluded that when an employee uses less than a full week of FMLA leave, the school closure does not count against FMLA leave unless the employee was scheduled to work during the closure. For example, if the employer closes all day on a Tuesday due to inclement weather and the employee was planning to take FMLA leave that Tuesday afternoon for medical treatment, so long as the employee was not scheduled to work during the closure, the planned FMLA leave should not be deducted because the employer was closed that day. If the employee uses a full week of FMLA leave, the entire week counts, even if a closure occurs.
Travel Time for Medical Appointments – FMLA2026-2
The last opinion addressed whether FMLA leave may be used for time spent traveling to and from medical appointments. The DOL concluded that FMLA leave may be used for such travel time for an employee’s own serious health condition or to care for a covered family member, in addition to the time for the actual appointment. However, any detours or time spent on unrelated activities is not protected by the FMLA. Additionally, the DOL found that medical providers are not required — and cannot be required by employers — to estimate travel time in FMLA medical certifications.
Conclusion
These opinion letters offer practical guidance on common issues employers face and serve as a helpful refresher for employers at the start of 2026. They further underscore the importance of consulting the underlying FLSA and FMLA regulations when evaluating workplace practices.