Wage and Hour Division says salaried exempt employees can work extra hourly non-exempt shifts without losing their exemption
As of our last check on November 2, 2026, this is agency guidance, not a rule. It explains how the agency reads the law and does not create a legal requirement on its own.
In short
- What changed
- The Department of Labor's Wage and Hour Division (WHD) issued opinion letter FLSA2026-5. It says a salaried employee exempt under section 13(a)(1) of the Fair Labor Standards Act (FLSA) stays exempt while working extra non-exempt shifts for hourly pay, as long as the primary duty is still exempt work and the salary rules are still met.
- Who's affected
- Employers that treat employees as exempt executive, administrative or professional staff and let them work extra shifts in a non-exempt role. The letter answers one nonprofit hospital employee's facts: salaried education specialists picking up weekend staff nurse shifts.
- What to do
- This letter creates no new duties for employers. If you pay exempt employees by the hour for extra non-exempt shifts, consider checking each arrangement against the letter's conditions: an exempt primary duty and the full salary paid every week.
What changed
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From the sourceIntroduction
the performance of additional non-exempt work at an hourly rate is insufficient to alter the employee’s exempt status under the FLSA as long as the employee’s primary duty remains the performance of exempt work
Also: Introduction
As such, this arrangement does not intrinsically present overtime implications.
WHD gave its opinion that an exempt employee who does extra non-exempt work at an hourly rate keeps the exemption, as long as the employee's primary duty remains exempt work and the salary requirements continue to be met. It says such an arrangement does not in itself raise overtime issues.
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From the sourceOpinion, A. Primary Duty Analysis
the substantial majority of the employee’s time (i.e., approximately 40 hours per workweek) is spent in the Specialist role, a factor that generally satisfies the primary duty requirement.
On the facts given, WHD found the primary duty stayed exempt because the employee spent about 40 hours a week in the exempt role and picked up only one or two 12-hour non-exempt shifts on weekends.
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From the sourceOpinion, B. Salary Level and Basis Analysis
In conclusion, an employee in the circumstances you describe remains exempt from the Act’s minimum wage and overtime requirements even though the employee performs some non-exempt work and receives additional hourly compensation for such work.
WHD concluded that the employee remains exempt from the FLSA's minimum wage and overtime requirements even while doing some non-exempt work for extra hourly pay.
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Our analysisOpinion, B. Salary Level and Basis Analysis
see also WHD Op. Ltr. FLSA2020-2 (Jan. 7, 2020) (explaining that additional payments for work performed beyond the normal workweek
The letter does not say it withdraws or replaces any earlier guidance. It cites earlier WHD opinion letters in support of its conclusion.
Who is affected
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Our analysisIntroduction
whether an employee exempt pursuant to section 13(a)(1) of the Fair Labor Standards Act (FLSA or Act) can perform additional work in a secondary, non-exempt role at an hourly rate
The reasoning is relevant to employers that classify employees as exempt under section 13(a)(1) and also use them in a secondary non-exempt role paid by the hour.
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From the sourceBackground
an organization that is an academic medical center and operates as a non-profit acute care hospital
Also: Background
Specialists typically pick up one, and occasionally two, 12-hour shifts as Staff Nurses per week on weekends
The facts concern a nonprofit academic medical center hospital where salaried nursing professional development specialists pick up weekend staff nurse shifts.
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From the sourceNote
This opinion is based exclusively on the facts and circumstances described in your request
Also: Note
The existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein.
The opinion rests only on the requester's facts, and WHD says other facts might lead to a different conclusion.
What it means in practice
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Our analysisGeneral Legal Principles, B.2. Salary Basis and Level
a salaried employee may receive additional compensation in most circumstances without losing the exemption, if the employee is guaranteed at least the minimum weekly-required amount paid on a salary basis.
Also: Background
the employer pays Specialists an hourly rate for such additional work, and the hourly rate is approximately equivalent to the Specialist’s guaranteed weekly salary divided by 40 hours.
On facts like these, an employer can pay an exempt employee straight-time hourly pay for extra non-exempt shifts, with no overtime premium, without putting the exemption at risk, provided the primary duty and salary conditions still hold.
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From the sourceFootnote 9
Merely because that the employer opts to derive the hourly rate for the Staff Nurse work from the Specialist’s salary ... does not call the salary or the employee’s exempt status into question.
WHD says setting the hourly rate for the extra shifts from the employee's salary does not call the salary or the exempt status into question.
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From the sourceFootnote 8
the FLSA does not require additional compensation beyond the predetermined salary based on the performance of additional or different work of any kind
WHD notes that the FLSA does not require extra pay beyond the salary when an exempt employee does additional or different work.
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From the sourceFootnote 7
then the employer could not properly claim the exemption under section (a)(1) of the Act in any workweek.
Also: Footnote 7
In that scenario, overtime would be computed based on the combined total remuneration and hours for both positions
WHD warns that if, over time, the employee's primary duty across both roles is non-exempt work, the employer could not claim the exemption in any workweek, and overtime would be figured on combined pay and hours for both positions.
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From the sourceFootnote 9
Because there is no indication that a Specialist’s underlying compensation is based on an hourly, daily, or shift rate, there is no need to further assess the guaranteed salary.
Also: Footnote 9
requiring a “reasonable relationship” between the guaranteed amount and the amount actually earned in a typical workweek where the employee’s usual earnings are computed on an hourly, daily or shift basis
WHD did not apply the extra "reasonable relationship" test for guaranteed salaries because nothing showed the specialist's underlying pay was set by the hour, day or shift. That test applies where usual earnings are computed that way.
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From the sourceClosing
This interpretation may be relied upon in accordance with section 10 of the Portal-to-Portal Act
The letter is an official interpretation that may be relied on under section 10 of the Portal-to-Portal Act, even if it is later modified, rescinded or found invalid.
What to do
AmendSignal analysis sorts these by whether this document changes them.
Already required
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From the sourceGeneral Legal Principles, A. The Act
The FLSA generally requires covered employers to pay employees at least the federal minimum wage ($7.25 an hour) for all hours worked and overtime at a rate of not less than one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek.
Under the FLSA, covered employers must pay employees at least the federal minimum wage ($7.25 an hour) for all hours worked and overtime of at least one and one-half times the regular rate for hours over 40 in a workweek, unless an exemption applies. The letter restates this existing requirement; it does not create it.
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From the sourceGeneral Legal Principles, B.2. Salary Basis and Level
an employee must be compensated on a salary basis at a rate equaling or exceeding the level specified in the regulations.
Also: Opinion, B. Salary Level and Basis Analysis
[w]henever an employee works at all in a week, he must get his full salary for that week.
Also: Footnote 4
The minimum salary level is $684 per week. See 29 C.F.R. § 541.600 (2020); see also 91 Fed. Reg. 27833–27837.
Under the FLSA's section 13(a)(1) regulations (29 Code of Federal Regulations (CFR) Part 541), an employee treated as exempt must be paid on a salary basis at or above the regulatory level, and must get the full salary for any week in which he or she works at all. The letter cites $684 per week as the minimum salary level. The letter describes this existing requirement; it does not create it.
Worth considering
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Our suggestionOpinion, A. Primary Duty Analysis
the employee meets the duties requirements for an exemption if the employee’s primary duty remains the performance of exempt work as defined in Part 541.
Consider identifying exempt employees who pick up non-exempt shifts and confirming that their primary duty is still exempt work.
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Our suggestionOpinion, B. Salary Level and Basis Analysis
Here, for each week, the employee receives the full Specialist salary, regardless of hours worked, for all work performed during the week in the Specialist role.
Consider confirming that payroll pays the full salary every week the employee works, separately from any hourly pay for extra shifts.
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Our suggestionBackground
Thus, these shifts typically make up about 23 percent, and occasionally about 38 percent, of the Specialists’ total hours worked per week.
Also: Footnote 7
then the employer could not properly claim the exemption under section (a)(1) of the Act in any workweek.
Consider tracking hours in each role so you can show how much time goes to exempt and non-exempt work over time.
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Our suggestionFootnote 9
requiring a “reasonable relationship” between the guaranteed amount and the amount actually earned in a typical workweek where the employee’s usual earnings are computed on an hourly, daily or shift basis
If an exempt employee's underlying pay is set by the hour, day or shift, consider reviewing the "reasonable relationship" test in 29 CFR 541.604(b), which the letter says it did not need to apply on its facts.
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Our suggestionNote
The existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein.
Before relying on the letter, consider comparing your own facts to the requester's, since WHD says different facts might lead to a different conclusion.
Open questions
The source leaves these open. We'll update this record if a later document answers them.
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Does the same conclusion hold when the extra non-exempt shifts make up a larger share of the employee's hours than in the letter?
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Is $684 per week still the minimum salary level for the exemption?
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Can employers other than the requester rely on this letter for their own dual-role arrangements?
Related changes
History
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FLSA2026-5: Whether an employee exempt pursuant to section 13(a)(1) of the FLSA can perform additional work in a secondary role at an hourly rate, and if so, what overtime implications may arise. Source (opens in a new tab)