New DOL Guidance on Blended Roles and What It Means for You
By Kathryn O'Connor, PHR, SHRM-CP, CCP, GRP, Director of Total Rewards & People Analytics
Published June 30, 2026
A few years ago, we wrote about the risks of blending exempt and non-exempt work and emphasized that performing too much non-exempt work can jeopardize an employee's exemption status under the Fair Labor Standards Act (FLSA).
Most often, this situation arises when an exempt employee absorbs lower-level tasks during a staffing shortage, or an exempt employee wants to pick up a second, hourly job with the same employer. A recent opinion letter from the U.S. Department of Labor (DOL) provides additional guidance on the second scenario.
Opinion letter FLSA2026-5 addresses whether an employee who is exempt under the FLSA can also work in a separate, non-exempt role paid by the hour. The request came from an academic medical center that operates as a non-profit acute care hospital whose salaried-exempt employees occasionally pick up hourly, non-exempt shifts on weekends as staff nurses. The additional work as a staff nurse adds up to roughly a quarter, and sometimes more, of each employee’s total weekly hours.
Upon review, the DOL determined that performing additional non-exempt work at an hourly rate did not alter an employee's exempt status, as long as two conditions held: the employee's primary duty remained the performance of exempt work, and the salary requirements continued to be met.
Primary duty analysis: As we noted in our earlier article, the 2004 regulations replaced the old "20 percent" cap on non-exempt work with a primary-duty test that looks at the employee's principal or most important duty. The DOL reaffirmed that there is "no strict percentage limitation on the performance of non-exempt work," and that spending more than 50 percent of time on exempt work generally satisfies this test.
Salary basis analysis: The DOL opined that paying additional hourly compensation for nursing shifts did not break the salary basis. They confirmed an employer may pay a salaried exempt employee additional compensation on any basis, including a straight-time hourly rate, for work beyond the normal workweek as long as the employee is still guaranteed the required weekly salary.
While the DOL responded to the specific facts presented by the medical center and provided valuable clarity for HR professionals, the core principle from our earlier article still holds: an employee has a single FLSA designation, and that designation is based on the combination of all work performed for the employer. Opinion letter FLSA2026-5 does not give employers a green light to pile non-exempt hours onto exempt staff. It simply confirms that a well-structured dual-role arrangement, where the exempt role genuinely remains the primary duty and the salary is preserved, can survive scrutiny.
HR Source members who need help applying these standards are encouraged to use our Field Guide to Employee Classification, which includes our FLSA Flowchart. HR Source members with questions can contact us through the HR Hotline Online or at 800-448-4584.