3/27/26 Takeaways from DOL’s Recent Opinion Letters

March 27, 2026

The Department of Labor (“DOL”) issued six new opinion letters offering official interpretations of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”). The opinion letters were published on January 5, 2026, and cover issues stemming from the effect of school closures on school employees to whether a union and employer are to exclude “roll call” periods when calculating overtime payment.

FLSA2026-1: “Learned Professional” FLSA Exemption

This opinion letter references the “learned professional” exemption. The learned professional exemption generally “requires that the employee’s ‘primary duty’ involves the performance of ‘work requiring advanced knowledge’ ‘in a field of science or learning’ which is ‘customarily acquired by a prolonged course of specialized intellectual instruction.’” DOL explains that a professional license and advanced degree alone are not sufficient to establish this exemption. Rather, the regular duties of the employee must also require use of the knowledge those licenses or degrees represent, and only “in a field of science or learning.”

This opinion letter also explains that employers are not required to classify employees who meet the requirements of any given FLSA exemption as exempt so long as they are consistent in the treatment of that employee. For example, an employee who qualifies for the learned professional exemption may be properly classified as non-exempt so long as they are paid minimum wage and overtime, when applicable.

FLSA2026-2: Exclusion of Certain Bonuses from Overtime Calculation

This opinion letter reminds employers that where a non-exempt employee is eligible for supplemental performance-based bonuses, their regular rate of pay for purposes of calculating overtime compensation should include those bonus amounts. There is an exception to this rule, where the bonus is discretionary and “not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly.”

FLSA2026-3: Whether Preliminary Activities Are “Hours Worked”

This opinion letter found that a mandatory “roll call” period prior to each shift is classified as compensable time, unless the employer and union specifically utilize two specific overtime exemptions under the FLSA. The employer must therefore (1) compensate employees for that time, and (2) consider that time when making overtime calculations for non-exempt employees. Preliminary activities are “nonetheless compensable if made so by contract, custom, or practice.”

FLSA2026-4: FLSA Wage Rates for Certain Employees Paid Commission

This DOL opinion letter focuses on explaining a specific exception to overtime under the FLSA for employees who are paid by commission. Specifically, when the applicable state minimum wage is higher than the federal minimum wage, the federal minimum wage remains the standard for determining whether an employee is exempt from overtime under the retail or service establishment exception. Accordingly, an employee who is regularly paid 1.5x the federal minimum wage who also earns more than half of their compensation from certain commissions may work in excess of 40 hours without being paid traditional overtime rates. The DOL also clarified that, in calculating an employee’s regular rate of pay for purposes of this overtime exception, tips are ordinarily not considered, unless the employer utilizes a “tip credit” system.

FMLA2026-1: FMLA Usage During Inclement Weather Closure

Under this new opinion letter, if a school employee is using a full week of FMLA leave during a time when the employer is closed for part of a week due to inclement weather, the entire week is counted towards FMLA leave. If an employee is using a partial week of FMLA leave and the employer is closed for a partial week, the closure is only counted towards FMLA leave if the employee was scheduled and expected to work during that closure time and used FMLA leave for that time.

FMLA2026-2: FMLA Usage for Time Spent in Medical Appointments

This recent DOL opinion letter confirms that travel time to and from medical appointments related to an employee’s own serious health condition, or that of a qualifying family member, is FMLA-protected and the travel time may be counted towards FMLA leave entitlement.

Employers should remember that state rules vary dramatically in this area, and should ensure they are complying with federal, state, and local rules.

Contact Lex Shvartsmann at 503-276-2111 or lshvartsmann@barran.com, or Winslow Robinson at 503-276-2103 or wrobinson@barran.com for advice on wage and hour compliance.