Our Take
The DOL is closing a loophole that let employers classify salaried workers as exempt while routinely assigning them nonexempt work—but only if the nonexempt duties stay occasional, not primary.
Why it matters
HR teams managing hybrid exempt/nonexempt staffing need to know where the line sits. The DOL has fielded multiple overtime calculation questions since relaunching its opinion letter program in mid-2025, signaling confusion in the field.
Do this week
HR: audit your exempt employee time logs and job descriptions before Q2 budget close so you can flag any role where nonexempt duties have become the norm.
DOL narrows the exempt worker exception
The Department of Labor has confirmed that overtime-exempt salaried workers can perform nonexempt (hourly) duties without automatically losing their exempt status, provided those duties remain secondary to their primary exempt role. The guidance addresses a recurring compliance question the DOL has fielded multiple times since reopening its opinion letter program in mid-2025 (per HR Dive reporting).
The ruling does not create a new rule. It clarifies application of the "primary duty" test, the existing standard under the Fair Labor Standards Act. An exempt employee's classification stands if their exempt duties consume the bulk of their work time, even if they spend some hours on nonexempt tasks.
The frequency of DOL inquiries on this topic since mid-2025 suggests widespread uncertainty about where the boundary sits. Employers have been wrestling with staffing flexibility in flatter organizations, where exempt staff often patch gaps by handling hourly work.
Misclassification remains a payroll liability
The guidance does not give employers a free pass to shift exempt workers into nonexempt work. If nonexempt duties become primary or regular, the worker should be reclassified and paid overtime. Failure to reclassify exposes the employer to back-pay claims and penalties.
The DOL's repeated clarifications on overtime math since mid-2025 point to a compliance maturity gap. Many HR teams do not have clear documentation of what each exempt role actually does day-to-day, making it hard to defend the "primary duty" claim in an audit.
Document primary duties now, not in discovery
Pull your exempt org chart and cross-reference it against actual time allocation. If an exempt employee spends 40% or more of their hours on nonexempt work, start the reclassification conversation with payroll. If duties are genuinely mixed and secondary, document the split in writing and retain time records that support it.
The DOL opinion letter program is active and fielding questions. If your role sits in a gray zone, consider requesting a private letter ruling from the Wage and Hour Division before an audit forces the issue.