Can an Exempt Employee Be Paid Hourly for Extra Shifts? (DOL 2026)

Short answer: yes, under the right facts. In Opinion Letter FLSA2026-5 (May 28, 2026) the U.S. Department of Labor said a salaried exempt employee can be paid an hourly rate for extra shifts in a non-exempt role and remain exempt for the whole workweek — as long as exempt work stays the primary duty and the full salary keeps being paid. Check the underlying tests with the Exempt vs. Non-Exempt Wizard.

The facts DOL reviewed

A hospital paid Nursing Professional Development Specialists a salary of about $2,000 per week as exempt employees. Many also picked up one, sometimes two, 12-hour weekend shifts as staff nurses, an hourly non-exempt job, paid at roughly their weekly salary ÷ 40. The extra shifts were about 23% of their weekly hours, occasionally 38%.

What DOL concluded

1. The exemption still applies. Doing some non-exempt work does not end the exemption if the employee's primary duty, looking at all of the work, is still exempt (29 CFR §541.700). Here, about 40 hours a week in the specialist role, with its autonomy and educational responsibilities, kept the primary duty exempt.
2. Extra pay is allowed — even hourly. An exempt employee may receive additional compensation for work beyond the normal workweek "on any basis," including straight-time hourly pay, without breaking the salary basis (29 CFR §541.604(a)).
3. The salary must be paid in full. The weekly salary (above the $684 federal minimum, 29 CFR §541.600) was paid for every week the specialist role was worked, so the salary basis test was met (29 CFR §541.602(a)).
4. No FLSA overtime on the hourly shifts. Because the employee remained exempt for the workweek, the hours in the hourly role did not trigger federal overtime.

When this would go wrong

• The extra work becomes the main job. If, over time, the combined work shows a primary duty that is not exempt, the exemption is lost for every workweek — and overtime is owed on all hours and all pay combined (letter, footnote 7; 29 CFR Part 778).
• The salary is docked in weeks when fewer exempt hours are worked. Improper deductions can destroy the salary basis (29 CFR §541.603).
• The "salary" is really an hourly rate. If the guaranteed pay is computed hourly, daily or by shift, the reasonable-relationship test of §541.604(b) applies. DOL said it did not apply here because the specialist salary was not computed that way.
• State law is stricter. Several states have higher salary thresholds or their own duties tests. California, for example, requires a salary of at least twice the state minimum wage for full-time work ($70,304 in 2026, $72,384 in 2027) and that the employee be primarily engaged in exempt duties more than half the time.

Checklist before copying this arrangement

• ☐ The exempt role is still where the employee spends most of the time and adds the most value.
• ☐ The full weekly salary is paid for any week exempt work is done, regardless of hourly shifts.
• ☐ The salary meets the federal ($684/week) and state thresholds.
• ☐ The hourly role is documented as extra, voluntary work beyond the normal workweek.
• ☐ Payroll records separate salary and extra-shift pay.

An opinion letter applies to the facts described in it. Employers can rely on it in good faith only for materially identical facts (29 U.S.C. §259).

Sources

• U.S. DOL — Opinion Letter FLSA2026-5 (May 28, 2026)
• U.S. DOL — News release, May 29, 2026
• 29 CFR §541.600–§541.604 — salary requirements
• 29 CFR §541.700 — primary duty
• California Department of Industrial Relations — 2027 minimum wage and exempt salary