The Department of Labor releases opinion letters designed to promote clarity, consistency, and transparency in the application of federal wage and hour standards. Opinion letters explain how the laws enforced by Wage and Hour apply in specific situations and circumstances that are faced by employees and employers. In May 2026, the DOL provided an opinion the performance of additional non-exempt work at an hourly rate is insufficient to alter the employee’s exempt status under the FLSA as long as the employee’s primary duty remains the performance of exempt work and the salary requirements continue to be met.
Salaried Nursing Specialist (exempt)
An academic medical center that operates as a non-profit acute care hospital employs staff in capacities of Staff Nurse and Nursing Professional Development Specialist. A staff nurse formulates clinical decisions for patients utilizing a multi-dimensional plan of care with the nursing process. They are paid hourly, plus additional compensation for night and weekend differentials, and are eligible for OT. The Nursing Professional Development Specialist identifies gaps in learning opportunities, designs educational programs, onboards new staff and advances the professional development of all staff, and conducts ongoing competency processes. They are salaried, exercise significant autonomy and judgment on where to provide support to Staff Nurses.
Compensated for Extra Staff Nursing Shifts
The Nursing Professional Development Specialist receives a salary and provides no additional compensation for hours worked over 40 in a work week in the Specialist role. However, a Specialist may pick up shifts as Staff Nurse per week on weekend. The extra shifts can make up 23 to 38% of their total hours worked in a week. Can the hospital employ an individual in both exempt and non-exempt capacity? Is overtime implicated?
DOL Regulation Focuses on Primary Duty
According to the DOL, if an employee performs work in both exempt (e.g., Specialist) and nonexempt (e.g., Staff Nurse) roles in the same workweek, the employee meets the duties requirements for an exemption if the employee’s primary duty remains the performance of exempt work. In this case, the Specialist’s primary duty remained their exempt Specialist work. Picking up 1 or 2 shifts per week did not change the primary role. The Wage and Hour regulations allows an employer may provide the employee with “additional compensation” without violating the salary-basis requirement, including “additional compensation based on hours worked for work beyond the normal workweek. See Section 541.604(a). Such additional compensation may be paid on any basis (e.g., flat sum, bonus payment, straight time hourly amount, time and one-half or any other basis. So, the hospital could pay either regular rate or overtime rate, without violating the exemption. Read the Opinion Letter, FLSA2026-5.
