An exempt employee does not lose exempt status simply by performing additional hourly work in a separate, non-exempt role, according to a recent Labor Department opinion letter. The exemption still may apply under the Fair Labor Standards Act if the employee’s primary duty is exempt work and the employee continues to satisfy the salary basis and salary level requirements, FLSA2026-5 stated.
The opinion letter involved an academic medical center whose exempt Nursing Professional Development Specialists sometimes picked up additional hourly shifts as non-exempt Staff Nurses. DOL concluded that the arrangement did not, by itself, change the employees’ exempt status because the Staff Nurse shifts were supplemental and the Specialist role remained their primary duty.
The opinion letter gives employers useful flexibility for dual-role arrangements, but it is not a blanket safe harbor. Employers still must be able to show that the employee’s primary duty is exempt work and that the salary basis rules are not undermined.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here. Employers can get an in-depth review of FLSA status determinations by registering for CWC’s Fundamentals of Wage and Hour Compliance.