When Exempt Employees Pick Up Extra Shifts: DOL Confirms Flexibility for Dual-Role Staffing

Key takeaways

• The U.S. Department of Labor’s Wage and Hour Division (DOL) recently issued Opinion Letter FLSA2026-5, addressing whether an employee exempt under Section 13(a)(1) of the Fair Labor Standards Act (FLSA) can perform additional work in a secondary, nonexempt role at an hourly rate and, if so, what overtime obligations arise. 
• The DOL concluded that, under the circumstances presented, the performance of additional nonexempt work at an hourly rate is insufficient to alter the employee’s exempt status, provided the employee’s primary duty remains the performance of exempt work and the salary requirements continue to be met. 
• This opinion provides important guidance for employers who utilize dual-role staffing arrangements.

FLSA2026-5 was spurred by a request from an employee of an academic medical center that operates as a nonprofit acute care hospital and employs both “Staff Nurses” on an hourly, nonexempt basis and “Nursing Professional Development Specialists” on a salaried, exempt basis. The employer’s Specialists frequently pick up one or two 12-hour Staff Nurse shifts per week on weekends, amounting to approximately 23% to 38% of total hours worked. The employer pays Specialists an hourly rate for those additional shifts. The employee asked whether an individual can be employed in both an exempt and nonexempt capacity simultaneously and what overtime obligations, if any, result.

Background on the Section 13(a)(1) exemption

Section 13(a)(1) of the FLSA exempts from both minimum wage and overtime requirements any employee employed in a “bona fide executive, administrative, or professional capacity.” Among other requirements, employers seeking to classify a worker as exempt must satisfy the primary duty and salary basis requirements. First, the employee’s “primary duty” must be the performance of exempt work, meaning the principal, main, major, or most important duty the employee performs, assessed based on all the facts of the case. Factors include the relative importance of exempt duties, the amount of time spent performing exempt work, the employee’s relative freedom from direct supervision, and the relationship between the employee’s salary and the wages paid to others performing the same nonexempt work. Second, the employee must be compensated on a salary basis at a rate equaling or exceeding the minimum level specified in the regulations, currently $684 per week. 

Does occasional nonexempt work defeat the exemption?

The DOL’s answer is no, at least where the exempt role remains the employee’s primary duty. The DOL emphasized that there is “no strict percentage limitation on the performance of non-exempt work” as long as the employee’s primary duty remains exempt. In the scenario presented, the Specialist spent approximately 40 hours per week in the exempt role and picked up one or two additional 12-hour shifts per week as a Staff Nurse. Because the substantial majority of the employee’s time was spent in the Specialist role, and because the Specialist functions involved the exercise of significant autonomy and discretion, the DOL concluded that the primary-duty requirement remained satisfied.

Notably, the DOL also recognized that even when an exempt Specialist performs some of the same tasks as a nonexempt Staff Nurse, those activities may be “directly and closely related” to the exempt work and do not necessarily undermine exempt status.

Paying hourly for the extra shifts

The DOL confirmed that an employer may provide “additional compensation” to an exempt employee, including additional compensation based on hours worked for work beyond the normal workweek, without violating the salary-basis requirement. Such additional compensation may be paid on any basis, including a flat sum, bonus, straight-time hourly amount, or time and one-half. The fact that the employer derived the hourly rate for the Staff Nurse work from the Specialist’s salary did not call the salary-basis requirement or the employee’s exempt status into question.

Critically, the DOL noted that the FLSA does not require additional compensation beyond the predetermined salary for additional or different work performed by an exempt employee, whether voluntary or mandatory. Thus, paying for the extra shifts is permissible but not required under federal law.

When the arrangement may not hold up

The DOL cautioned that if, over time, all the work performed by an employee in both roles reflects a primary duty that consists of activities not meeting the exemption’s duties requirements, the employer could not properly claim the exemption. For example, the DOL cited prior guidance finding that employees whose primary duty was their full-time, nonexempt work, with only part-time exempt responsibilities, could not be classified as exempt. In that scenario, the regular hourly rate and overtime for hours worked over 40 would be computed based on the combined total remuneration and hours for both positions.

Key implications for employers

The primary-duty analysis is fact-specific and multifactored. Employers cannot rely on job titles alone. They must assess the relative importance of exempt duties, time spent, supervisory freedom, and salary relationships on an ongoing basis. Where an exempt employee’s additional nonexempt shifts remain supplemental to a full-time exempt role, the exemption is preserved, but employers should monitor whether the balance shifts over time. 

The salary-basis requirement is not defeated by additional hourly payments. As long as the employee receives the full predetermined salary for any week in which work is performed, additional compensation for extra shifts does not jeopardize exempt status. Moreover, deriving the hourly rate from the employee’s salary does not implicate the “reasonable relationship” test of 29 C.F.R. § 541.604(b), which applies only where an employee’s usual earnings are computed on an hourly, daily, or shift basis. 

Practical tips for employers

• Audit the primary duty balance regularly. Track the proportion of exempt versus nonexempt hours over time. If nonexempt shifts begin to dominate, the exemption may no longer apply. 
• Ensure the salary remains guaranteed and predetermined. The exempt employee must receive the full salary for any week in which work is performed, regardless of hours worked in the exempt role.
• Document the basis for additional compensation. Maintain records showing the hourly rate for nonexempt shifts is additional compensation under 29 C.F.R. § 541.604(a), not the employee’s base rate of pay. 
• Preserve the distinction between roles. Clearly define exempt and nonexempt job functions and ensure the exempt role’s duties (autonomy, discretion, and specialized functions) remain the employee’s principal responsibility.