New DOL Opinion Letters Provide Wage-and-Hour Guidance

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Quick Hits

• The DOL’s Wage and Hour Division recently published four opinion letters that address several complex wage-and-hour issues under the Fair Labor Standards Act (FLSA).
• Employees do not need to be compensated for meal breaks even when distance makes it difficult for them to leave the worksite for a meal in the allotted amount of time.
• Waiting in line to clock in or clock out at timekeeping stations generally is not compensable time.

Meal Breaks

Under the FLSA, a bona fide meal break is not compensable time when a nonexempt employee is freed from all work duties. FLSA2026-7 concerned a meal-break question from an employer with a large facility with controlled access points and parking located a considerable distance from work areas. The opinion letter states, “The fact that an employee is required to eat his or her meal on the employer’s premises or is minimally restricted in the activities they may perform does not convert this meal period into compensable time.”

Thus, an employer is not legally obligated to pay for time voluntarily spent travelling off-site to obtain or eat a meal. It also is not required to extend a thirty-minute meal period to accommodate time an employee may spend leaving and returning to his or her work area from off-site before and after a meal. State meal break laws may differ from the FLSA requirements.

Pre-Shift and Post-Shift Activities

Employees must be paid for pre-shift or post-shift activities that are indispensable and integral to the employee’s principal work. FLSA2026-8 addressed whether certain pre-shift activities by hospital workers constitute compensable work and, if so, whether rounding employees’ clock-in time to their scheduled shift start time is permissible. In this scenario, the pre-shift activities included locating work assignments, completing accountability documentation, assigning employees to work locations via communication devices, and receiving handoff reports regarding patient status.

The DOL clarified that some of the pre-shift activities, such as receiving handoff reports and locating work assignments, qualify for compensable time because they are integral and indispensable to the principal work duties. However, waiting in line to clock in or out at a timekeeping station is not compensable time if it occurs before an employee’s first principal activity of the day or after the last principal activity of the day.

The hospital in the scenario permitted employees to clock in up to seven minutes before their shifts started to avoid tardiness, but it did not pay them for that time because it claimed the time was de minimis, according to the employee who requested the opinion letter. The hospital rounded up to the shift start time, but it did not use other rounding practices. The employee did not present information as to whether the hospital’s rounding practice was facially neutral and benefited employees in other circumstances. 

If employees regularly perform compensable work before their scheduled shifts begin, then an employer’s rounding practice at the beginning of the day “may result in minimum wage or overtime violations, because it exclusively benefits the employer by rounding early arrivals to the scheduled shift time,” the opinion letter notes. However, if employees are engaged in noncompensable activities, like getting coffee, socializing, checking phones, or storing personal belongings, the time may be considered de minimis and the rounding practice may be acceptable. The opinion letter only addresses federal law, not state laws that may be more restrictive.

One Employee in Two Different Roles

FLSA2026-5 discussed whether an overtime exempt employee can perform additional work in a secondary, nonexempt role at an hourly rate, and if so, what overtime implications arise. The letter addressed a question from an academic medical center with a nonprofit hospital, which employs nonexempt staff nurses who sometimes work as nursing professional development specialists, a role typically classified as exempt.

The FLSA provides an exemption from overtime and minimum wage requirements for employees working in a “bona fide executive, administrative, or professional capacity.” The DOL clarified that if an employee performs work in both exempt and nonexempt roles in the same workweek, the employee can be properly classified as exempt if the exempt role remains the employee’s primary duty. When a substantial majority of the employee’s time is spent in the exempt role, that generally satisfies the primary duties requirement for an exemption. This will be a factual determination.

Bonus Pools

FLSA2026-6 addresses how a quarterly bonus program can remain compliant with the FLSA’s overtime pay requirement for nonexempt workers. For the purposes of determining overtime pay, an employee’s regular rate is the total of “‘all remuneration for employment paid to, or on behalf of, the employee’” for the workweek, divided by the total number of hours worked. Nondiscretionary bonuses must be included in the regular rate calculation, but discretionary bonuses do not need to be included.

With a bonus pool, some employers compare each employee’s total earnings to the total earnings of all the employees in the pool to determine the share of the bonus pool to pay each participating employee. Thus, each employee receives a different percentage of the bonus pool. The DOL clarified that this practice is acceptable “so long as the earnings for each employee include any required overtime premiums and do not include any amounts previously excluded from the regular rate of pay when determining those overtime premiums.” (Emphasis in the original.)

Next Steps

Employers may wish to review their wage-and-hour pay policies and practices in light of these recent opinion letters. The DOL noted in FLSA2026-8 that employers “should expect exacting scrutiny of de minimis claims where employees perform off-the-clock work with any degree of regularity.”

Ogletree Deakins’ Wage and Hour Practice Group will continue to monitor developments and will post updates on the Healthcare and Wage and Hour blogs as additional information becomes available.

Charles E. McDonald, III, is a shareholder in Ogletree Deakins’ Greenville office.

Steven F. Pockrass is a shareholder in Ogletree Deakins’ Indianapolis office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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