Dual-Role Scheduling & Overtime: New DOL Opinion Letter FLSA2026-5

Does dual-role scheduling put your overtime compliance at risk? A new DOL opinion letter says it depends on the specific facts of the arrangement.

The question came from an academic medical center, but the answer applies broadly to any employer that uses dual-role scheduling arrangements.

The DOL responded by issuing Opinion Letter FLSA2026-5 on May 28, 2026.

Dual-Role Scheduling and FLSA Exemptions for Exempt Employees

The employer’s situation involved salaried, exempt employees who regularly picked up hourly shifts in a separate, non-exempt role – typically one or two 12-hour shifts per week on weekends, on top of their standard exempt workweek.

The employer paid those employees their full exempt salary for their primary role and an additional hourly rate for the non-exempt shifts. The employer wanted to know whether that arrangement compromised the employees’ exempt status and whether overtime was owed as a result of the dual-role scheduling.

How the DOL Analyzed Primary Duty and Salary Basis

The DOL focused on two things: primary duty and salary basis.

On primary duty, the DOL looked at all the facts of the arrangement – not just hours logged. Time spent in the exempt role is one factor, but the analysis also weighs the relative importance of the exempt duties, the degree of autonomy involved, and how the employee’s salary compares to wages paid for the non-exempt work. Here, the DOL said those factors pointed in the same direction: the exempt role remained the employee’s principal function, and the non-exempt shifts were supplemental, not central.

On salary basis, the DOL confirmed that paying additional hourly compensation for non-exempt shifts does not undermine the exemption, as long as the employee continues to receive the full guaranteed salary each week. Employers can pay exempt employees extra compensation for additional work, including on an hourly basis, without losing the exemption.

Bottom Line: DOL Opinion Letter FLSA2026-5

Dual-role scheduling doesn’t automatically create overtime liability under the Fair Labor Standards Act. The DOL confirmed that an exempt employee may pick up hourly shifts in a separate non-exempt role without losing exempt status – provided the primary duty remains exempt work, and the salary-basis requirements continue to be met.

The DOL did flag one important limit: Primary duty is not a one-time determination made at hire. If the balance shifts over time and non-exempt work becomes the dominant function, the exemption disappears, and overtime is owed on all combined hours.

Practical Takeaways for Payroll and HR

For payroll and HR teams managing dual-role arrangements, best practices include:

• Document both roles clearly, including job duties and classification for each
• Confirm the exempt role continues to qualify under the FLSA’s duties tests
• Track hours separately by role – exempt and non-exempt – so payroll records clearly reflect which hours were worked in which capacity, and
• Monitor the actual duty mix over time, because the primary duty determination is ongoing, not a one-time call at hire.