From time to time, federal agencies will issue opinion letters which provide guidance on how the agency views certain issues presented to them. On January 5, 2026, the U.S. Department of Labor (DOL) issued six of these opinion letters addressing a range of Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) issues. I read through them, so you don’t have to, and here are my takeaways:

In FLSA 2026-1, a Licensed Clinical Social Worker (LCSW) was reclassified from exempt to non-exempt. While she continued to satisfy the educational and job duties criteria of an exempt “learned professional,” her employer made the choice to reclassify her to an hourly employee. The opinion letter said that whether this employee’s duties satisfy the exemption test is beside the point. It is the employer’s prerogative if it wants to pay an employee an hourly rate. There is no law mandating an employee to be treated as exempt (only the opposite, if their duties and pay do not meet the exemption). If the employer chooses to pay an hourly rate, then the employee is entitled to overtime for hours worked over 40 in a workweek.

Letter FLSA 2026-2 concerned how to calculate an employee’s “regular rate of pay” for the purpose of overtime. We touched on this topic in our newsletter on paying holiday bonuses. A bonus only can be excluded from an employee’s regular rate of pay if: (i) it is truly discretionary; (ii) payment is made at or near the end of the period when the work is performed; and (iii) if the payment is not made pursuant to any contract, agreement, etc. which would cause the employee to expect the payment. If the bonus does not fit those criteria, then it must be included when determining the employee’s “regular rate.”

FLSA 2026-3 discussed a niche question for unionized workplaces, i.e., whether a CBA can legally mandate that a pre-work “roll call” be excluded from calculating overtime premiums under the FLSA. The Opinion Letter punted on any overarching conclusions here. This is a thorny 9-page opinion letter dealing with archaic partial-overtime exemptions, but the broader takeaway is – no, employers cannot generally reach agreements with employees getting them to waive their rights to overtime.

FLSA 2026-4 deserves a flashing “WARNING” light at the top of it. The letter asked several questions of restaurant workers, chief among them whether tips count as “compensation” (for the limited purpose of satisfying an exemption). The DOL found that tips did not count as “compensation ...” and buried in a footnote that the Fourth Circuit Court of Appeals (which includes Maryland) has explicitly found otherwise. This leads to an important lesson for employers – wage and hour compliance is just as (if not more) important at the state level than the federal.

In FMLA 2026-1, the DOL answered a timely question about closures for emergency weather. If a workplace closes for part of a week during which an employee uses less than a full week of FMLA leave, is the period the workplace is closed counted as FMLA leave? The DOL opined that, when a holiday falls during a week when an employee is taking intermittent FMLA leave (or FMLA leave in less than a full workweek increment), the holiday does not count against the employee’s FMLA leave entitlement unless the employee was scheduled and expected to work on the holiday. (In contrast, when a holiday falls during a week an employee is taking a full workweek of FMLA leave, the entire workweek counts.) The same principle applies here – if a business is temporarily closed (due to weather or otherwise), the days the employer’s business activities have ceased do not count against FMLA time.

FMLA 2026-2 asked the question of whether FMLA leave may be used for time spent traveling to or from medical appointments. This is a simple one: yes. This is a nitpick I will never understand employers wanting to fight – if an employee requires FMLA intermittent leave for follow-up appointments, then of course the intermittent leave covers the travel time to those appointments. Sometimes common sense truly dictates.

In sum, not a whole lot of revelatory thoughts from the DOL, but there were some good reminders on best practices for employers as we start the new calendar year. Please reach out to an RKW lawyer if you have questions about these or other workplace issues.