The U.S. Department of Labor (DOL) recently issued four opinion letters in response to public inquiries regarding specific applications of the Fair Labor Standards Act and DOL regulations. Over the next several days, we will address each of these opinion letters, with the one discussed below being of particular interest to hospitals and health care providers facing staffing shortages.
Exempt Employees Working in Nonexempt Roles
On May 28, 2026, the DOL issued an opinion, FLSA 2026-5, addressing whether a white-collar exempt employee could perform additional work in a secondary, nonexempt role at an hourly rate, the extent to which such work would affect an employee’s exempt status, and its effect on overtime obligations. Although the opinion letter applies to all industries, it was requested by a hospital.
According to the opinion letter, the hospital employed staff in “Staff Nurse” and “Nursing Professional Development Specialist (Specialist)” positions. The Staff Nurse position was classified as a nonexempt position, and entailed “formulating clinical decisions . . . utilizing a multi-dimensional plan of case with the nursing process, demonstrating respect for patient rights and privacy, serving as an advocate, assisting in orientation of new employees, and delegating tasks to other personnel.”
The Specialist’s functions included “identifying gaps in learning opportunities, designing educational programs, onboarding new staff, advancing the professional development of all staff, and conducting ongoing competency processes.” Although the Specialist does not replace the Staff Nurse and that position’s function, the Specialist might perform the same interventions as a Staff Nurse. Specialists are classified as exempt.
On occasion, Specialists pick up Staff Nurse shifts as additional work. According to the opinion letter, Specialists typically pick up one or two 12-hour Staff Nurse shifts on weekends, after working 40 hours from Monday through Friday. As a result, Specialists who work weekend hours performing nonexempt work are working well in excess of 40 hours in a workweek, across a combination of exempt and nonexempt positions. These extra shifts account for about 23 percent to 38 percent of a Specialist’s weekly worked hours.
DOL Opinion Eases Health Care Employers’ Staffing Shortage Concerns
The DOL concluded that, under these circumstances, Specialists do not lose their exempt status simply because they perform additional hourly nonexempt work for the same employer. As a result, working in excess of 40 hours does not trigger any obligation to pay the Specialist overtime pay.
According to the DOL, the above result is permissible because:
- the Specialist’s primary duty remains performing exempt work;
- the Specialist’s salary is not impacted by the extra hourly work, and satisfies the salary basis test; and
- paying extra hourly wages for other work does not violate the salary basis test, because DOL regulations allow extra compensation in addition to salary.
Bottom line
Allowing an exempt employee to assume other roles or positions will not jeopardize the employee’s exempt status as long as the employee’s primary work remains exempt and the employee’s salary is not affected. There are risks in permitting this arrangement if scheduling or other health care practices shift exempt employees’ work to performing more hourly work.
The DOL’s opinion letter clarifies an important operational issue affecting the health care industry and other industries that require staffing flexibility.
Harris Beach Murtha’s Labor and Employment Practice Group attorneys are closely following DOL activities and related matters. If you have questions or need assistance with the DOL’s opinion letter and its application to your practices, please reach out to attorney Salvatore G. Gangemi at (203) 653-5436 and sgangemi@harrisbeachmurtha.com, or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
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