DOL OKs Dual-Role Work When Salaried Employees Pick Up Hourly Shifts

It is an increasingly common scenario in the workplace: a salaried, exempt employee volunteers to pick up shifts in a second position that the employer ordinarily fills with hourly, non-exempt employees. The arrangement can be a welcome solution for employers facing coverage gaps and for employees looking to earn supplemental income.

But it also raises a question that employers cannot afford to overlook: does an exempt employee’s voluntary performance of additional non-exempt work jeopardize the exemption attached to their primary role, render the employee non-exempt, and expose the employer to overtime liability on the employee’s total compensation across both positions?

On May 28, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Opinion Letter FLSA2026-5, which takes up precisely that question. The short answer is reassuring: a properly classified exempt employee who picks up occasional hourly shifts in a secondary, non-exempt role does not lose exempt status under the Fair Labor Standards Act (FLSA), so long as the employee continues to meet the duties and salary requirements for the primary, exempt role. The opinion offers employers a measure of clarity, but it also reinforces that the analysis is fact-specific and must be revisited as work patterns evolve.

The Facts Presented to the WHD and the FLSA Exemption Framework

The WHD issued the opinion letter in response to a request from an individual employed by an academic medical center that operates as a nonprofit acute care hospital. The hospital employs staff nurses, who deliver direct patient care and are classified as non-exempt and paid on an hourly basis. The hospital also employs nursing professional development specialists, who design educational programming, onboard new staff, and conduct competency assessments, and are classified as exempt and paid a salary.

Specialists work about 40 hours per week in their exempt role and frequently volunteer to pick up one or two 12-hour weekend shifts as staff nurses. For the supplemental shifts, the hospital pays specialists an hourly rate calculated by dividing the specialist’s weekly salary by 40.

The requester asked the WHD whether this dual-role arrangement was lawful and what overtime implications, if any, would arise from the combined work.

The FLSA generally requires employers to pay the federal minimum wage for all hours worked and overtime at one and one-half times the employee’s regular rate for hours worked beyond 40 in a workweek. The statute exempts from those requirements employees who work in a bona fide executive, administrative or professional capacity, provided two well-known conditions are met:

• • The employee’s primary duty must consist of exempt work
  • The employee must be paid on a salary basis at or above the regulatory minimum (currently $684 per week)

Importantly, the regulations expressly allow an employer to provide an exempt employee with additional compensation above the guaranteed salary — including pay calculated on an hourly, flat-sum or other basis — without disturbing the exemption.

The WHD’s Conclusions on Dual-Role Work

The WHD concluded that the dual-role arrangement described in the request above was permissible under the FLSA. Specialists did not lose their exempt status by voluntarily picking up staff nurse shifts at an hourly rate, and the hospital did not incur overtime liability on the employee’s combined compensation across both roles. The WHD’s conclusion rested on two key findings, set out below, that should guide employers structuring similar arrangements:

• • The exempt role remained the employee’s primary duty. Because specialists devoted the substantial majority of their working hours each week to the exempt role, and because that role required meaningful autonomy, judgment and discretion, the occasional weekend staff nurse shifts did not displace exempt work as the employee’s principal duty.

The WHD also recognized that, even when a specialist performed some of the same bedside tasks as a staff nurse during the course of providing educational support, those activities were closely tied to the exempt function and did not by themselves convert the employee’s primary duty into non-exempt work.

• • The salary basis was preserved by treating the supplemental pay as additional compensation. As noted above, a core requirement of the exemption is that the employee be paid on a “salary basis” — meaning a fixed, predetermined amount each pay period that does not fluctuate based on the quantity or quality of work performed. Employers often worry that paying an exempt employee on an hourly basis for any portion of his or her work could undermine the salary basis and, with it, the exemption itself. The WHD’s opinion lays that concern to rest in this context.

Because the specialist continued to receive the full weekly salary in any week in which the employee performed any specialist work — regardless of whether a staff nurse shift was picked up — the guaranteed salary remained intact, and the hourly amounts paid for the staff nurse shifts qualified as permissible additional compensation layered on top of it. The WHD also clarified that the form of the supplemental pay is largely up to the employer. The hospital could have paid it as a flat sum, a bonus, or on some other basis without changing the outcome.

The WHD closed with an important caveat: its conclusion was driven by the specific facts presented. If, over time, the balance of work shifts so that exempt work no longer constitutes the employee’s primary duty, or if the salary basis is no longer intact, the exemption will no longer apply. In such a case, overtime will have to be calculated on the employee’s combined hours and total compensation across both roles.

What Employers Should Do Now

Opinion Letter FLSA2026-5 gives employers a defensible blueprint for allowing salaried exempt employees to pick up supplemental hourly work, but it is not a categorical safe harbor. Employers operating or considering a dual-role arrangement should keep several practical points in mind.

First, the primary duty determination is not a one-time judgment made at hire. Employers should periodically reassess how much time the employee spends in each role and confirm that exempt work continues to define the position. When the supplemental hours in the non-exempt role begin to rival or exceed the time devoted to the exempt role, employers are at risk of losing the exemption.

Second, the guaranteed weekly salary must be paid in full in every workweek in which the employee performs any work in the exempt role, regardless of whether any supplemental shifts are picked up. Any arrangement that makes the guaranteed salary itself contingent on the performance of supplemental shifts may defeat the exemption and should be scrutinized closely.

Finally, employers should remember that the WHD’s interpretation governs only the FLSA. State wage and hour laws may impose higher salary thresholds, narrower duties tests, or different rules for dual-role pay arrangements, and a compensation model that complies with FLSA2026-5 may still create exposure under applicable state law.

Please contact Matthew Perez or any member of the Phelps Labor and Employment team with questions.