Knowledge

DOL Issues Six Opinion Letters Interpreting the FLSA and FMLA

January 26, 2026

Christopher P. Maugans Cali L. Chandiramani Scott R. Green Caroline J. Berdzik Stephen C. Mazzara

KEY TAKEAWAYS:

The six opinion letters provide official interpretations on key workplace compliance questions under the Fair Labor Standards Act and Family and Medical Leave Act.
The opinion letters address critical issues, including employee wage and hour exemptions, bonus calculations in overtime pay, the intersection of wage and hour law with collective bargaining agreements, and the application of FMLA leave.

OVERVIEW

On January 5, 2026, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued six opinion letters designed to promote clarity, consistency, and transparency in the application of federal labor standards. These official written interpretations address real-world questions submitted by employers, employees, and their representatives and explain how specific provisions of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) apply to particular factual circumstances.

Letter 1 (FLSA2026-1): Learned Professional Exemption and Employer Discretion

Under the FLSA, employees must comply with minimum wage and overtime requirements unless an applicable exemption applies. Exemptions are only satisfied if each prong of this three-part test is met: 1) the employee is paid on a salary basis; 2) the employee is paid at or above the salary threshold; and 3) the primary duty test is satisfied.

In this opinion letter, the DOL analyzed the “learned professional” exemption and confirmed that employers retain full discretion to classify employees as non-exempt even when they meet all requirements for an exemption. This is because the exemption is claimed by the employer, not the employee. Accordingly, employers may choose to classify employees that meet all three parts of the exemption test as non-exempt for business reasons, provided they pay at least the federal minimum wage and overtime premiums for hours worked over 40 hours in a workweek.

Letter 2 (FLSA2026-2): Non-Discretionary Bonuses and Overtime Calculations

The FLSA requires that overtime pay be calculated based on an employee’s “regular rate of pay,” which includes all remuneration for employment with limited statutory exceptions. The FLSA allows discretionary bonuses to be excluded from employees’ regular rate of pay for overtime purposes, but non-discretionary bonuses must be included in the regular rate calculation.

In this opinion letter, the DOL reiterates that bonuses calculated using predetermined criteria and formulas are non-discretionary and must be included in employees’ regular rate of pay for purposes of calculating overtime. A bonus qualifies as “discretionary” only when the fact and amount of payment are determined at the employer’s sole discretion at or near the end of the period, and the payment is not made pursuant to any prior contract, agreement, or promise. When calculating non-discretionary bonuses into the regular rate, employers must calculate total straight-time earnings (base wages plus bonuses) for the workweek and divide by total hours worked to determine the regular rate, then calculate and pay the additional half-time premium for overtime hours worked.

Letter 3 (FLSA2026-3): Collective Bargaining Agreements and Roll Call Time

The FLSA defines the term “employ” to include “to suffer or permit to work.” Work not requested but suffered or permitted is compensable work time.

In this opinion letter, the DOL addressed questions relating to a proposed provision in a collective bargaining agreement (CBA) between an employer and a union, relating to a mandatory 15-minute “roll call” prior to each scheduled shift. First, the DOL confirmed that mandatory roll call time is compensable work time that must be counted as “hours worked.” Second, because the 15-minute roll call time is compensable, it needs to be included as part of the workweek for purposes of calculating any overtime pay due.

Third, the DOL discussed sections 7(b)(1) and 7(b)(2) of the FLSA, which provide partial overtime exemptions for employees working under qualifying CBAs. If an employee exceeds the maximum hours under either exemption, the exemption no longer applies, and the employer must recalculate all earnings for the entire period without the exemption. Employers seeking to invoke either exemption need to make sure the CBA language and application of it are compliant with the rules.

Letter 4 (FLSA2026-4): FLSA Section 7(i) Exemption for Commissioned Employees

The FLSA exempts certain employees of retail or service establishments from its overtime pay requirements. The exemption applies to any employee of a retail or service establishment whose (1) regular rate of pay exceeds one and one-half times the federal minimum wage and (2) compensation for a representative period is composed of more than 50 percent commissions.

In this opinion letter, the DOL confirmed that this overtime exemption uses the federal minimum wage standard, not state or local minimums. Employees must have a regular rate exceeding one and one-half times the federal minimum wage (currently $10.875/hour) to satisfy this requirement. The letter also clarifies that tips are generally not “compensation” for purposes of determining whether more than half of compensation consists of commissions, except to the extent an employer takes a tip credit. Service charges are considered commissions, while voluntary tips from customers are not.

Letter 5 (FMLA 2026-1): School Closures and FMLA Leave Usage

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees may generally take up to 12 “workweeks of leave” in a 12- month period (leave year) for qualifying FMLA leave reasons.

In this opinion letter, the DOL explains how school closures impact FMLA leave usage for school employees. When an employee is approved for FMLA leave for less than a full workweek and the school closes such that the employee would not be expected to report to work, the closure time should not be deducted from the employee’s FMLA entitlement. When an employee is using FMLA leave for a full workweek and the school closes for less than a week, the employer may deduct a full week’s worth of leave from the employee’s FMLA entitlement. Whether the school closure was planned or unplanned has no impact on leave usage. The specific reasons for the closure are not material to the analysis. “Make up” days scheduled later do not impact this analysis, as they are unrelated to the protected use of FMLA leave. However, employees may still use FMLA leave on “make up” days if they are eligible, have a qualifying need, and have unused leave entitlement.

Letter 6 (FMLA2026-2): Travel Time to Medical Appointments

Under the FMLA, an employee who must be absent from work to receive medical treatment for a serious health condition is considered unable to perform the essential functions of the position during the absence for treatment.

In this opinion letter, the DOL confirmed that employees may use FMLA leave for travel time to and from medical appointments related to their own serious health condition or that of a covered family member. Travel time that is necessary to reach medical appointments is part of the time needed to accomplish the visit, provided the employee is unable to perform the functions of the position during the absence for treatment and travel. Healthcare providers are not required to estimate or provide information about travel time on medical certifications. Protected travel includes direct travel to and from medical appointments, while unprotected travel includes stops for personal errands or time spent on activities unrelated to the serious health condition. Employers should also note that for planned medical treatment, an employee must consult with their employer and try to schedule the treatment at a time that minimizes disruptions.

Next Steps for Employers

Employers should work with experienced employment counsel to review their current policies and practices in light of the six DOL opinion letters discussed above. Key areas to assess include: employee classification systems, compensation structures, overtime calculation methods, and FMLA administration procedures.

If you have questions about how these opinion letters impact your business or need assistance reviewing your wage and hour practices, please contact a member of our Employment and Labor team: