On January 5, 2026, the DOL’s Wage and Hour Division (WHD) issued six new opinion letters related to various topics under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Below, PilieroMazza provides a brief overview of the three most relevant opinion letters, along with key takeaways for employers. For a full list of all of the opinion letters issued by DOL to date, please visit the DOL’s website.
A. FLSA2026-1: Learned Professional Exemption and Employer Discretion to Claim Exemption
This opinion letter was requested by an employee whose employer decided to reclassify the employee’s position as a Licensed Clinical Social Worker (LCSW) from exempt to non-exempt status under the FLSA. The employee was unhappy with the reclassification, which followed removal of their supervisory job duties. The issue presented to DOL was whether an employee’s role meets the criteria for the learned professional exemption under section 13(a)(1) of the FLSA, and, if so, whether an employer is nevertheless permitted to reclassify the employee as non-exempt.
In its analysis, the DOL concluded the employee’s core job duties likely necessitated the advanced knowledge and academic requirements to qualify under the learned professional exemption. However, for the exemption to apply, the employee would also need to meet the salary compensation requirements, and in this case, because the employer changed the compensation to hourly, the employee would no longer meet the salary basis test, and the exemption would no longer apply. The letter explained that even if the employee remained salaried, the ultimate discretion whether to classify an employee as exempt rests with the employer, not the employee, and continued, “In other words, the [FLSA] does not require an employer to classify as exempt an employee who meets the requirements of an exemption.”
Employer Takeaway: The letter is a good reminder that shifts in employee responsibilities, schedules, and payment terms require renewed evaluation of an employee’s FLSA classification. It is important to regularly review employee classifications with your workforce to ensure employees meet both the job duties and salary basis tests. Additionally, it’s a good reminder that employers have ultimate discretion to classify employees as non-exempt, and risk-averse employers may want to err on the side of caution by classifying employees accordingly.
B. FLSA2026-2: Bonus Payment Impact on Regular Rate of Pay
This opinion letter was also requested by an employee whose employer excluded certain bonus payments from the employee’s regular rate for purposes of calculating overtime premiums and instead calculated overtime premiums owed only using the employee’s base hourly rate. The issue presented to DOL was whether section 7(e) of the FLSA permits an employer to exclude certain bonus payments from an employee’s regular rate of pay. The letter also addresses how to include these payments in the calculation of employee overtime premiums if the payments must be included in an employee’s regular rate of pay.
In its analysis, the DOL clarified that where bonuses are non-discretionary, the bonus payments need to be included in each employee’s regular rate of pay in any workweek for which they are earned. This is because such bonuses are incentives and do not meet any other FLSA section 7(e) exclusion. In this case, the employer’s exclusion of the bonus payments from the regular rate of pay resulted in the employer failing to pay in full the overtime premium owed to employees.
Where an employer has a bonus plan that is pre-determined and quantifiable (i.e., based on a set formula), these additional incentive bonus payments are deemed “non-discretionary” and must be included in the employee’s regular rate of pay for any workweek for which the bonus payment was earned. By way of example, using the facts presented by the employee in the opinion letter, if the employee works 50 hours in a workweek, is paid a base hourly wage of $12, and also receives $9.50 an hour in bonuses for all hours worked, the regular rate of pay would be $21.50 per hour and $32.25 ($21.50 x 1.5) for each overtime hour.
Employer Takeaway: Bonus formulas can incentivize higher employee productivity and better work product. They are a valuable tool for employee recruitment and retention. That said, employers need to understand that implementing these non-discretionary bonus plans can have severe implications for non-exempt employee overtime rates. This letter is a good reminder to review current bonus plans to evaluate whether they impact employee regular rates.
C. FMLA2026-2: Use of FMLA-Leave for Travel Time To and From Medical Appointments
This opinion letter was requested by an employer with eligible FMLA employees who take planned intermittent or reduced-schedule FMLA leave to attend medical appointments related to their own serious health condition or the serious health condition of a qualifying family member. The issue presented to DOL was whether FMLA leave may be used for time spent traveling to or from medical appointments, including where an employee provided the employer with medical certification from a health care provider that confirms the employee’s need for the appointment, but the certification does not address travel to or from the appointment.
In its analysis, the DOL confirmed that under the FMLA regulations, employees are permitted to use FMLA-protected leave to cover travel time to and from medical appointments for themselves or their family members’ serious health conditions. While not explicitly recited in the FMLA rules and regulations, the DOL opined that “[p]art and parcel of obtaining care and continuing treatment from a medical provider may require the employee to travel to the provider’s location.” That said, the DOL clarified that FMLA-protected leave for travel time does not encompass travel to or from, or stops for, “other unrelated activities.”
Employer Takeaway: As difficult as it can be to accommodate intermittent FMLA leave, this letter is good reminder that qualified employees are entitled to the leave regardless of programmatic challenges. Employees should be permitted to use FMLA-protected leave for travel time to and from medical appointments (either for the employee’s own condition or that of a family member). Additionally, employees are not required to provide medical certification regarding travel time. That said, to the extent an employee misuses the FMLA leave and/or uses FMLA leave for additional time spent before or after the appointment that is unrelated to the serious health condition, an employer may discipline the employee.s
If you have any questions about these opinion letters and/or would like to discuss how to navigate the impact of these opinion letters on current policies and practices, contact Sara Strosser, Sarah Nash, or another member of PilieroMazza’s Labor & Employment Group.
