The U.S. Department of Labor issued a new FLSA opinion letter on May 28, 2026, addressing a practical staffing question for hospitals and other employers: Can an exempt employee perform additional hourly, non-exempt work for the same employer without losing the employee’s exempt status?

According to the DOL, the answer is yes under the facts presented. The agency concluded that performing additional non-exempt work at an hourly rate does not change an employee’s exempt status, so long as the employee’s primary duty remains exempt work and the employer continues to satisfy the FLSA’s salary basis and salary level requirements.

The opinion letter involved an academic medical center that employed nurses in two roles. Staff nurses were paid hourly and treated as non-exempt. Nursing professional development specialists were paid a salary and treated as exempt. The specialists typically worked about 40 hours per week in their exempt role, but could pick up 1 and occasionally 2, 12-hour staff nurse shifts on weekends. Those additional shifts were paid at an hourly rate. 

The DOL concluded that this arrangement did not, by itself, destroy the specialists' exempt status. The key was that the specialists' main job remained exempt. They spent the substantial majority of their time in the specialist role, and the DOL noted that the specialist duties involved autonomy, judgment, identifying learning gaps, designing educational programs, onboarding staff, and conducting competency processes. 

The opinion letter also confirms that additional hourly compensation does not necessarily violate the salary-basis rule. Under the FLSA regulations, an exempt employee may receive extra compensation for work beyond the normal workweek, including compensation paid on an hourly basis, if the employee still receives the required guaranteed salary. 

This conclusion is helpful, but it is not a blank check. The DOL emphasized that the result depends on the employee’s actual duties and compensation structure. If, over time, the combined work in both roles shows that the employee’s primary duty is really non-exempt work, the employer may not be able to claim the exemption. In that situation, overtime would need to be calculated based on the employee’s combined hours and total compensation for both positions. 

Employer Takeaways

This opinion letter should be useful for healthcare employers, manufacturers, retailers, and other businesses that occasionally ask exempt employees to pick up frontline or operational shifts. Employers considering this approach should:

• Confirm that the employee independently satisfies the duties test for an executive, administrative, or professional exemption.
   
• Pay the employee a guaranteed salary that satisfies the applicable federal salary threshold.
   
• Ensure the exempt role remains the employee’s primary duty, both in terms of time spent and the importance of the duties performed.
   
• Clearly document when the employee is performing the secondary role and how any additional pay will be calculated.
   
• Periodically review whether the employee’s actual work has shifted toward primarily non-exempt duties. 

The bottom line is that the FLSA allows some flexibility. An exempt employee does not automatically become non-exempt merely because the employee picks up additional hourly work. But employers should monitor these arrangements carefully, especially where the secondary work becomes frequent or begins to dominate the employee’s schedule.

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