The DOL issued a new Fair Labor Standards Act (“FLSA”) opinion in May of this year that addresses the question of whether an exempt employee can perform additional hourly non-exempt work for the same employer without losing their exempt status.

Can an Exempt Employee Perform Non-Exempt Work?

The opinion, Opinion Letter FLSA2026‑5, arose from a request that involved a Nursing Professional Development Specialist (“NPD Specialist”) who was employed by a medical center. The medical center classified the NPD Specialists as exempt under the FLSA.  The medical center allowed these exempt employees to pick up shifts as staff nurses, which were a separate non-exempt position. The NPD Specialists usually worked 40 hours per week in their exempt role and then voluntarily picked up one to two additional twelve-hour shifts as non-exempt staff nurses.  The NPD Specialists would receive their fixed salary for work in their exempt role and would be paid an hourly rate for any non-exempt shifts worked.

The DOL’s Answer: Exempt Status Can Be Preserved

In the opinion letter, the Department of Labor (“DOL”) confirmed that in situations where an exempt employee performs both exempt and non-exempt work in the same week for the same employer, the exempt status of that employee is preserved so long as the employee’s primary duty remains the exempt work.

When is Exempt Work the Primary Duty?

Under the FLSA, the primary duty requirement focuses on whether the employee’s principal, main, major, or most important duty is the performance of exempt work. Whether or not the primary duty requirement is met is fact-specific; however, there are relevant factors, which include:

• the relative importance of the exempt duties compared to other duties; 
• the amount of time spent performing exempt work;
• the employee’s relative freedom from direct supervision; and 
• the relationship between the employee’s salary and the wages paid to other employees for similar non-exempt work.

The FLSA states that generally an employee who spends more than fifty percent (50%) of their time on exempt work will meet the primary duty requirement. However, employees who spend less than 50% of their time on exempt work may still qualify for the exemption if the other factors support that conclusion. 

How the DOL Applied the Rule

The opinion letter confirmed that, in the case of the NPD Specialists who perform both exempt and non-exempt work for the same employer within a single workweek, they would still be considered exempt as long as the employee’s primary duty remains exempt work. In making this determination, the DOL emphasized that the NPD Specialists:

• Continued to perform all duties associated with their exempt role;
• Maintained a full-time schedule in that position; and
• Only occasionally and voluntarily performed additional non-exempt work, which constituted less than 50% of their total working time.

The DOL also concluded that the salary basis requirement was satisfied because the NPD Specialists received their guaranteed set salary at or above the salary threshold set by the FLSA regardless of hours worked. It was also noted that the additional hourly pay the employee received for working staff nurse shifts did not undermine the exemption, as the pay constituted permissible supplemental pay layered on top of their guaranteed salary.  

The opinion also discussed that the medical center opted to divide the NPD Specialist’s weekly salary by forty to determine the hourly rate that would be paid for staff nurse work. The DOL detailed that this approach was permissible, but not required under the FLSA, as the additional compensation could have been paid on any basis including a flat sum, an hourly rate, or any other basis.

The DOL did note that the outcome in this situation was dependent on the facts that were presented. If the balance of duties shifted to an extent that the employee’s primary duty was no longer the exempt work, the exemption would be lost under the FLSA.

Employer Takeaways

The opinion letter should assure employers that, with proper structure, they can have exempt employees who are paid on a salary basis occasionally perform non-exempt work and be paid on an hourly basis without concern of losing the exemption. However, employers must always keep in mind that the employee’s primary duty must remain their exempt role.

Best Practices for Managing Exempt Employees Who Perform Non-Exempt Work

The analysis for these types of situations is fact-specific, so employers should ensure:

• The employee’s primary duty continues to be exempt work;
• A compliant salary basis is maintained;
• Any additional compensation is structured as supplemental to, not a substitute for, the required salary; and
• Regular review of job duties as well as time allocation.

While this opinion offers greater flexibility for employers facing staffing shortages or seeking to maximize workforce resources, it should not be viewed as a blanket approval for all dual-role arrangements. As with many wage and hour issues, the analysis is highly fact-specific, making regular review of employee classifications and work assignments a prudent risk-management practice.

By: Cara Sheehan, Esq.