On May 29, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued four new Fair Labor Standards Act (FLSA) opinion letters. Two of them—FLSA2026-5 and FLSA2026-8—address questions that come up frequently for employers managing exempt classifications and timekeeping practices. Below is a summary of each.
Dual-position Employees Can Retain Exempt Status
In Opinion Letter FLSA2026-5, the DOL confirms that exempt employees don’t automatically lose exempt status simply because they also work a second position for the same employer at an hourly rate. The key question remains whether their primary duties constitute exempt work.
According to the DOL, to remain exempt, the substantial majority of an employee’s time must be spent performing exempt duties. This remains true even if some portion of the duties performed in the exempt role includes nonexempt activities, so long as those activities are “directly and closely related” to the exempt work. Employers that use employees across multiple roles should take comfort that a secondary hourly assignment will not, standing alone, defeat an otherwise valid exemption, but you should ensure the exempt duties continue to predominate.
Pre-shift Work, Clock-in Time, and Rounding Policies
Opinion Letter FLSA2026-8 addresses three common timekeeping issues:
Pre-shift work is generally compensable. The DOL says that pre-shift work performed after an employee clocks in—even within the seven minutes before the scheduled start of the shift—must be compensated as “hours worked.” Pre-shift work includes activities like equipment preparation, chart review, and other duties integral and indispensable to the employee’s principal duties. Notably, the DOL warns it will apply “exacting scrutiny” to any off-the-clock work performed with “any degree of regularity,” given modern time-tracking technology. Historically, employers tended to rely on the de minimis doctrine in these circumstances, which the DOL signaled is losing favor in the court system.
Time spent clocking in or out isn’t compensable. Unlike pre-shift work, the DOL confirms that employers aren’t required to compensate employees for the act of clocking in or out—or for time spent waiting in line to do so. Clock-in and clock-out aren’t principal activities, nor are they integral and indispensable to employees’ principal activities.
Rounding policies remain permissible—with conditions. The DOL confirms that employers may maintain a rounding policy that rounds clock-in time (up to seven minutes early) to the scheduled shift start, even if they don’t allow employees to clock out before the shift ends. However, two conditions must be met: (1) No compensable pre-shift work is performed during the rounded period, and (2) over time, the rounding practice doesn’t systematically undercompensate employees for hours actually worked.
Bottom Line
These opinion letters don’t break new ground, but they offer helpful clarification on issues employers deal with regularly. For FLSA2026-5, if you’re using dual-role staffing models, you should document that the exempt role’s duties remain the employee’s primary duties. For FLSA2026-8, you should review your timekeeping and rounding policies to ensure compliance, particularly when employees routinely perform any work tasks before the official start of their shift.
Brian Benkstein is an attorney with Felhaber Larson in Minneapolis, Minnesota, and can be reached at bbenkstein@felhaber.com.