On May 29, 2026, the U.S. Department of Labor’s Wage and Hour Division issued four new FLSA opinion letters. Two of them—FLSA2026-5 and FLSA2026-8—address questions that come up frequently for employers managing exempt classifications and timekeeping practices. Below is a summary of each.
Dual-Position Employees Can Retain Exempt Status (FLSA2026-5)
The DOL confirmed that an exempt employee does not automatically lose exempt status simply because the employee also works a second position for the same employer at an hourly rate. The key question remains whether the employee’s primary duties constitute exempt work. According to the DOL, to remain exempt, the substantial majority of the employee’s time must be spent performing exempt duties. This remains true even if some portion of the duties performed in the exempt role includes non-exempt activities, so long as those activities are “directly and closely related” to the exempt work. Employers who utilize employees across multiple roles should take comfort that a secondary hourly assignment will not, standing alone, defeat an otherwise valid exemption—but should ensure the exempt duties continue to predominate.
Pre-Shift Work, Clock-In Time, and Rounding Policies (FLSA2026-8)
Opinion Letter FLSA2026-8 addressed three common timekeeping issues:
Pre-shift work is generally compensable. The DOL stated that pre-shift work performed after an employee clocks in—even within the seven minutes before the scheduled start of the shift—must be compensated as “hours worked.” Pre-shift work includes activities like equipment preparation, chart review, and other duties integral and indispensable to the employee’s principal duties. Notably, the DOL warned it will apply “exacting scrutiny” to any off-the-clock work performed with “any degree of regularity,” given modern time-tracking technology. Historically, employers tended to rely upon the de minimis doctrine in these circumstances, which the DOL signaled is losing favor in the court system.
Time spent clocking in or out is not compensable. Unlike the pre-shift work described above, the DOL confirmed that employers are not required to compensate employees for the act of clocking in or out—or for time spent waiting in line to do so. Clock-in and clock-out are not principal activities, nor are they integral and indispensable to the employee’s principal activities.
Rounding policies remain permissible—with conditions. The DOL confirmed that an employer may maintain a rounding policy that rounds a clock-in time (up to seven minutes early) to the scheduled shift start, even if the employer does not allow employees to clock out before the shift ends. However, two conditions must be met: (1) no compensable pre-shift work is performed during the rounded period, and (2) over time, the rounding practice does not systematically undercompensate employees for hours actually worked.
Bottom Line
These opinion letters do not break new ground, but they offer helpful clarification on issues employers deal with regularly. For FLSA2026-5, employers using dual-role staffing models should document that the exempt role’s duties remain the employee’s primary duties. For FLSA2026-8, employers should review their timekeeping and rounding policies to ensure compliance—particularly where employees routinely perform any work tasks before the official start of their shift.