Mixing Exempt and Non-Exempt Work? Here’s What Employers Need to Know

-

A recent opinion letter from the U.S. Department of Labor, Wage and Hour Division (WHD), FLSA2026-5, offers a helpful reminder for employers managing exempt classifications — particularly in workplaces where employees may perform a mix of exempt and non-exempt work.

The key takeaway: An employee does not lose exempt status simply because they perform additional non-exempt work — even if that work is paid hourly — so long as the core exemption requirements are met.

The Scenario: Blended Roles in the Workplace

The opinion letter describes a nonprofit acute care hospital that employs exempt “nursing professional development specialists” for 40 hours during the week, but they sometimes pick up one or two 12-hour weekend shifts as “staff nurses,” which is a position classified as non-exempt. During those extra weekend shifts, specialists are paid an hourly rate for the additional work. Thus, the question is whether an employer can employ an individual in both an exempt and non-exempt capacity, and if so, whether any overtime implications arise.

Despite this hybrid arrangement, the DOL concluded that the employee remains exempt, and no overtime obligation arises under the circumstances presented.

Why? Because the core exemption criteria were still met.

Refresher: The Two Pillars of Exempt Status

The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees minimum wage and overtime for all hours worked over 40 in a workweek. However, many positions — most commonly those which are executive, administrative, and professional — are classified as exempt if they meet the key requirements under the FLSA: Their duties qualify under one of the statutory exemptions and they are paid a minimum weekly salary.

To decide whether an exempt employee who does some non-exempt work can continue to be classified as exempt, employers should consider the same two key factors: (1) the employee’s duties and (2) how the employee is paid.

1. Primary Duties Test

    The first and most important question is whether an employee’s “primary duty” remains exempt work. Primary duty means the employee’s principal or most important responsibility, evaluated based on the job as a whole — not isolated tasks or job titles.

    Key considerations include:

    • The importance of exempt duties compared to other work
    • Time spent performing exempt work
    • Level of discretion and independence

    While spending over 50% of time on exempt work generally supports exemption, it is not dispositive. Employees who spend less than 50% of their time on exempt work may qualify if other factors point to exempt status.

    In the opinion letter, the employee spent the majority of her time (i.e., approximately 40 hours per week) doing exempt work. Her non-exempt work was only supplemental (i.e., picking up one to two 12-hour shifts per week). Additionally, her exempt role as a nursing professional development specialist required independent judgment and specialized responsibilities, including identifying gaps in learning opportunities, designing educational programs, onboarding new staff, advancing the professional development of all staff, and conducting ongoing competency processes.

    Based on these facts, the WHD’s administrator determined that the employee’s primary duty remained exempt, preserving the exemption.

    2. Salary Basis Requirement

    To qualify as exempt, the employee must also be paid on a salary basis that meets minimum thresholds.

    This means:

    • The employee receives a fixed, predetermined salary each pay period
    • The salary is not reduced based on hours worked or performance
    • The salary meets or exceeds the minimum required level (currently $684/week under federal law)

    Importantly, the opinion letter confirmed that employers may provide additional compensation — including hourly pay for extra non-exempt work — without undermining exempt status, so long as the guaranteed salary remains intact. That was the case here: At $2,000 per week, the specialist’s base pay exceeded the minimum salary level and then the employer paid the employee additional compensation for working extra shifts as a staff nurse. That extra pay did not violate the salary basis or defeat the exemption.

    A Key Warning for Employers

    The DOL also flagged an important limitation: If an employee’s duties evolve such that non-exempt work becomes the primary duty, the exemption will no longer apply.

    At that point:

    • The employee becomes non-exempt, and
    • Overtime must be calculated based on all hours worked over 40 using the employee’s regular rate of pay (i.e., the weighted average of all compensation earned in the workweek).

    Practical Reminders for Employers

    This opinion letter underscores several compliance best practices:

    • Audit job duties regularly to confirm the primary duty remains exempt
    • Preserve the salary structure — avoid improper deductions
    • Monitor blended roles where employees perform multiple types of work
    • Train managers on how duty changes can impact classification

    Final Thoughts

    This opinion letter reinforces a guiding principle for employers: Exempt status depends on the overall character of an employee’s job — not whether they occasionally perform non-exempt work.

    For employers, this scenario offers flexibility but it’s also a reminder to carefully evaluate both what employees do and how they are paid.

    Source(s):

    Mixing Exempt and Non-Exempt Work? Here’s What Employers Need to Know | JD Supra. (2026). JD Supra. https://www.jdsupra.com/legalnews/mixing-exempt-and-non-exempt-work-here-8762151/

    ‌