Update Applicable to:	Effective Date
All Employers	January 5, 2026

What happened?

On January 5, 2026, the United States Department of Labor’s Wage and Hour Division (WHD) issued six new opinion letters (four under the Fair Labor Standards Act and two under the Family and Medical Leave Act) to clarify how federal labor standards apply in common workplace situations.

As the Wage and Hour division of the DOL is in place to enforce federal laws setting minimum wage, overtime, recordkeeping, and other standards such as working conditions for most U.S. workers, they provide oversight of many other areas illustrated in their opinion letters. These six opinion letters are new letters, not updates to existing ones, and they can be relied on as official interpretations for good‑faith compliance.

Overview

The Department revised and expanded its opinion‑letter program in June 2025. Each letter addresses a real, fact‑specific question and provides a practical, plain‑English interpretation employers and employees can use.

Letter topics in brief

• FLSA2026-1: Learned professional duties vs. pay method; employers may choose to classify otherwise qualifying roles as nonexempt if they pay minimum wage and overtime.
• FLSA2026-2: Pre‑set performance bonuses must be included in the regular rate used for overtime calculations.
• FLSA2026-3: Mandatory pre‑shift “roll call” time counts as hours worked; certain collective bargaining agreements may change when overtime is due.
• FLSA2026-4: Commissioned employee test under FLSA section 7(i) uses federal minimum wage; tips count toward compensation only when a tip credit is taken.
• FMLA2026-1: How partial‑week school closures affect FMLA leave usage.
• FMLA2026-2: Travel time to and from medical appointments can be covered FMLA leave.

Why Opinion Letters Matter

• Provide additional information and  guidance to help employers reduce risk of misclassification, regular‑rate mistakes, and overtime underpayments.

• Aim to clarify complex compliance areas such as pre‑shift time, commissioned pay rules, and leave accounting for school closures and medical travel.

• Provide current agency interpretations you can cite in policies, payroll procedures, labor relations, and leave administration.

Actions Steps for Compliance

• Exemptions: Review both duties and pay-basis for learned professionals; document decisions when keeping roles nonexempt.

• Regular rate: Identify incentive plans with pre‑set criteria; include those bonuses in the regular rate and correct overtime math.

• Pre‑shift time: Count mandatory pre‑shift activities as hours worked; if using collective bargaining agreement rules, confirm statutory elements and keep required records.

• Commissioned staff (FLSA section 7(i)): Ensure weekly regular rate ≥ $10.875 and that commissions exceed 50% of pay over a representative period; treat tips as compensation only when you take a tip credit; maintain documentation.

• FMLA tracking: Exclude partial‑week closure days when an employee was not scheduled to work; charge a full week when full‑week FMLA was taken; allow travel time tied to care and do not reject certifications that lack travel‑time estimates.

Additional Information

• Opinion letters are official interpretations that can support a Portal‑to‑Portal Act good‑faith defense (United States Code, Title 29, Section 259).

• The Department’s opinion‑letter webpages explain how to request a letter and browse existing guidance across WHD, the Occupational Safety and Health Administration, the Employee Benefits Security Administration, the Veterans’ Employment and Training Service, and the Mine Safety and Health Administration.

What to Avoid

• Assuming a bonus is “discretionary” when its criteria are pre‑set.
• Failing to count mandatory pre‑shift time in weekly hour totals.
• Using state minimum wage to test section 7(i)’s pay threshold (use federal minimum wage for the test while separately complying with higher state or local wage laws).
• Rejecting FMLA certifications solely because they do not list travel time.

Source References

• DOL – Press Release – Issues 6 opinion letters (January 5, 2026)

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