FLSA Opinion Letter: Exempt Employees and Nonexempt Shift Work

On May 28, 2026, the Department of Labor (DOL) released Fair Labor Standards Act (FLSA) opinion letter FLSA2026-05 providing clarity on the implications of an exempt employee picking up nonexempt shift work and whether overtime pay is owed.

The Situation

An academic medical center that also operates as a nonprofit acute care hospital employs both “staff nurses” and “nursing professional development specialists.” Staff nurse is a nonexempt position, is paid on an hourly basis, and earns overtime premiums for hours worked over 40 in a workweek. Nursing professional development specialist is classified as an exempt position and earns a regular bi-weekly salary.

The specialists often pick up one, and occasionally two, 12-hour staff nurse shifts per week. The medical center pays the specialist an hourly rate that is equivalent to their weekly pay divided by 40 hours. The questions asked in the submission are:

• Can an employee work in both an exempt capacity and a nonexempt capacity?
• Is overtime owed in this situation?

Findings

The DOL reminds us that employers may provide a salaried employee additional compensation without violating the salary-basis. Further, the employees in this circumstance remain classified as exempt employees and are exempt from the Act’s minimum wage and overtime requirements.

Examples in Education

Similar scenarios take place in education. They include:

• A teacher — which is a salaried, exempt position — drives a bus at the end of every school day and is paid an hourly rate for her time. This is allowable, and the teacher remains exempt based on their primary duties.
• A business manager — which is a salaried, exempt position — scans tickets at all home basketball games and is paid a flat rate for the additional time. This is allowable, and the business manager remains exempt based on their primary duties.
• A registered nurse employed as a health services coordinator works outside of his normal schedule to fill in for a licensed vocational nurse (LVN). He is paid an hourly rate that aligns with the LVN pay grade. Although allowable under the FLSA, in Texas, Chapter 21 does not allow an RN to earn less than the minimum salary schedule.
• A plumbing technology instructor, who is a licensed plumber, is called in over the weekend to fix a water leak at a college building. She is paid an hourly rate for the additional time. This is allowable, and the faculty member remains exempt based on  primary duties.

Reminder

Exempt employees may, under most circumstances, accept additional work for additional pay without violating the salary-basis. Overtime premiums are not owed when the primary duty is exempt.