The U.S. Department of Labor (DOL) Wage and Hour Division recently issued Opinion Letter FLSA2026-5 (May 28, 2026), offering important clarity on a common workforce practice: allowing exempt employees to perform additional, non-exempt work on an hourly basis. For HR leaders navigating staffing shortages, flexible scheduling, or hybrid job design, particularly in healthcare and nonprofit settings, this guidance is both timely and practical.
The opinion examines a hospital’s staffing model for a Nursing Professional Development Specialist who was considered an overtime-exempt employee under Section 13(a)(1) of the FLSA. In that role, the employee’s primary duties include designing educational programs, onboarding new nursing staff, and advancing their professional development, exercising significant autonomy and independent judgment. They were paid on a salary basis exceeding $2000 per week, and the DOL had no concern that they were exempt employees.
The main duties of a Staff Nurse were non-exempt and included formulating clinical decisions for patients utilizing a multi-dimensional plan of care, assuring respect for patient rights and serving as their advocate. The Nursing Specialist occasionally worked additional shifts serving as a Staff Nurse performing non-exempt duties and was paid hourly. Although Nursing Specialists might perform some of the same interventions as Staff Nurses, the Nursing Specialist did not replace the Staff Nurse as the patient’s primary care provider. Although Nursing Specialists might perform some of the same interventions as Staff Nurses, the Nursing Specialist did not replace the Staff Nurse as the patient’s primary care provider. This dual role could account for up to 38% of their total weekly work hours. Although overtime hours were often worked, the arrangement itself did not trigger overtime obligations.
The DOL’s Key Conclusion
The question posed was whether an employer can employ an individual in both an exempt capacity and non-exempt capacity and what overtime implications might arise as a result. The DOL concluded that an exempt employee may perform additional non-exempt work and receive hourly pay without losing their exemption, so long as certain conditions are met. Those conditions are as follows:
1. The Employee’s Primary Duty Must Still Control
The employee must maintain his or her primary role and most time must be spent on exempt duties.
In this case:
- The Nursing Specialist still worked her primary duties at 40 hours per weeks
- Non-exempt shifts were supplemental and limited
The DOL emphasized that there is no strict percentage cap on non-exempt work, as long as exempt duties remain the “principal” function.
2. The Salary Basis Must Remain Intact
- The employee must receive a guaranteed salary each week regardless of hours worked
- That salary must meet the minimum threshold (currently $684/week)
- The full salary must be paid for any week in which work is performed
In this case:
- The Nursing Specialist’s salary (~$2,000/week) exceeded requirements
- Pay was not reduced based on hours worked
3. Additional Pay Is Allowed
Employers may pay exempt employees additional compensation, including hourly pay, for additional work without jeopardizing exempt status. Permissible forms of additional compensation include:
- Hourly pay
- Bonuses
- Shift differentials
- Even overtime premiums (voluntarily provided)
The DOL noted that the FLSA does not require additional compensation beyond the predetermined salary based on the performance of additional or different work of any kind by an employee exempt from overtime.
4. No Automatic Overtime Liability Unless Employee’s Primary Duty Shifts to Non-Exempt Work
Because the employee remains exempt:
- FLSA overtime rules do not apply, even if total hours exceed 40
- There is no requirement to combine hours across both roles for overtime calculation
If the employee’s primary duty shifts to non-exempt work over time, the exemption could be lost and overtime would then apply based on total combined hours and compensation.
Key Risks for Employers
The bottom line is that exempt status is determined by the job as a whole, not by occasional hourly work. Employers can blend exempt and non-exempt work, but they must carefully preserve the integrity of the exemption.
Practical Takeaways for HR
1. Dual-Role staffing models are permissible
Exempt employees may take on hourly shifts in a different role without losing exemption if structured correctly.
2. Audit the “Primary Duty” Regularly
Implement periodic reviews to confirm:
- There is not “duty drift” and exempt duties remain the primary focus of the position
- Time allocation and job expectations are aligned
- Supervisory and discretionary functions are preserved
- Job descriptions are complete and accurately define the primary job functions as exempt
3. Maintain Clean Pay Structures
Ensure:
- Salaries are guaranteed and not docked
- Additional pay is clearly identified as supplemental
- No implied conversion to hourly status
4. Train Managers and Payroll Teams
Frontline leaders and payroll staff must understand:
- How to accurately document dual pay types and determine when they are permissible
- How to avoid accidental reclassification/misclassification of exempt status
5. Document Everything
Strong documentation is the best defense:
- Job descriptions reflecting exempt duties
- Policies allowing voluntary additional work
- Pay practices aligned with FLSA regulations
Contact
For questions about structuring dual-role positions, evaluating exempt status or reviewing wage and hour compliance, contact Partner Maribeth Meluch (MM@kjk.com) or anyone in KJK’s Labor and Employment practice group.