A hospital may employ staff as overtime-exempt specialists who simultaneously take shifts performing nonexempt staff nurse work during the same workweek without altering the employees’ exemption status under the Fair Labor Standards Act, the U.S. Department of Labor said in an opinion letter issued Thursday.
The document is one of a group of four letters issued last week by DOL Wage and Hour Division Administrator Andrew Rogers. Rogers said the FLSA’s executive, administrative and professional overtime exemption applies to employees whose “primary duty” involves performance of exempt work.
Per the letter, the specialists’ primary duty continued to be the performance of exempt work, even as they occasionally took up two shifts per week on weekends as staff nurses performing nonexempt work and were paid additional hourly compensation for that work. Employers may provide additional compensation to exempt employees paid on a salary basis without violating the FLSA’s salary-basis requirement, according to the letter.
A second letter also addressed overtime pay requirements. Specifically, the employer provided a quarterly bonus program in which award amounts are determined by a formula that multiplies a percentage of the employer’s total gross compensation paid to all eligible employees during the quarter by the available bonus pool amount. The employer did not provide additional overtime pay on the bonus because it believed the bonus amount paid to each eligible employee constituted a simultaneous payment of any required overtime pay.
Rogers said that such an arrangement is compliant with the FLSA provided that the bonus amount is calculated as a percentage of total earnings as a bonus as described in DOL regulations. But the administrator noted that such bonuses must not include any amounts previously excluded from the employee’s regular rate of pay for the purposes of calculating overtime premiums.
The bonus amount received by eligible employees “must be a percentage of each employee’s total earnings — both straight-time earnings and overtime earnings — that does not dilute the overtime portion of the ratio,” Rogers added.
The two remaining letters published Thursday concern the compensability of certain off-site travel during meal periods as well as pre-shift activities and waiting time.
DOL has addressed overtime calculation issues several times since the relaunch of its opinion letter program in mid-2025. In January, the department issued letters on the role of certain performance-based bonuses and pre-shift time in overtime pay, while an October 2025 batch tackled scenarios like that of an employee working for two separate but operationally integrated businesses.
The letters are generally viewed as helpful compliance assistance tools for employers, and DOL officials — including current Acting Labor Secretary Keith Sonderling — have said as much in the past. Thursday’s documents also constitute a follow up to DOL’s recent decision to rescind the overtime final rule issued by the Biden administration in 2024.
DOL’s opinion letter program is open to parties beyond employers, however, and anyone from employees to labor unions to HR professionals themselves can submit an opinion letter request. Attorneys previously told HR Dive that such requests should outline a specific, factual scenario with a detailed explanation of the employer’s assumptions about the law or regulations at issue without including sensitive information the employer does not want revealed.