The United States Department of Labor (DOL) kicked off 2026 by publishing six opinion letters on January 5, from the Wage and Hour Division (WHD). These letters help employers and workers understand how existing laws and regulations will be interpreted and enforced by the federal government.
Five of the six letters could apply to companies in the printing industry. Here is a summary of them.
Classifying Employees as Exempt vs. Nonexempt
Although this opinion letter addresses whether a licensed clinical social worker is a “learned professional”, something that does not typically apply to the printing industry, it is informative about how to classify an employee as exempt.
Classifying employees as “exempt” means that they are not eligible to receive overtime pay when working more than 40 hours per week. Exempt employees may be salaried or hourly wage workers, despite the common misconception that paying an employee a salary will automatically make them exempt from overtime pay.
The letter explains that the employer – not the employee – claims the exemption, and that even if an employee fulfills all of the exemption criteria, the employer is not required to claim the exemption. The opinion letter reaffirms that an employee who does not fulfill the criteria cannot be classified as exempt.
Bonus Pay Calculations in the Overtime Regular Rate of Pay
The Fair Labor Standards Act (FLSA) requires employers pay an overtime rate at 1.5% of the employee’s regular rate of pay. The opinion letter explains whether bonus payments should be included as part of the regular rate of pay.
Bonus payments may be excluded from the regular rate of pay when they are discretionary. To be considered discretionary, all three of the following criteria must be met:
1. The employer can choose to pay (or not pay) a bonus at their sole discretion; and
2. The employer decides whether to pay a bonus at or near the end of a specific work period; and
3. Paying the bonus is not required by a contract, agreement, or promise that has caused the employee to expect bonus payments regularly.
If the employer has created a process where the bonus payment is automatically triggered by fulfillment of specific requirements, then the DOL has determined that the bonus payment is not discretionary.
An example of when a bonus should be included in the regular rate of pay is when the payment is promised if certain production metrics are met. For instance, when a spoilage rate is met, or a production quality standard is met, and that triggers the bonus payment, then two of the listed criteria are eliminated. This means that the bonus is not discretionary and the bonus pay must be included in the regular rate of pay.
Union & Employer Improper Agreement to Eliminate Time as Hours Worked
When a company is a union shop, the relationship with the employees is governed by a collective bargaining agreement (CBA). That CBA sets out work times, wages, benefits, and other important terms and conditions of employment. The WHD opinion letter addresses mandated attendance outside of work hours and overtime.
The opinion letter stated that a “roll call” or other mandated attendance that happens outside of regular work hours and is compensable under the CBA is considered “hours worked” under the FLSA. These hours must be included as part of the total number of hours worked each week, which is the basis for determining overtime. In a bona fide CBA, it may be possible to delineate time outside of work hours that may fulfill an exception to pay overtime compensation. That exception would need to fulfill the requirements found in Section 7(b)(1) or 7(b)(2) in the FLSA. The analysis is very specific to the particular CBA. The Alliance can help perform the analysis if a company is in this situation and would like to analyze if overtime compensation must be paid in their circumstances.
Calculating Leave When a Business is Closed
The federal Family and Medical Leave Act (FMLA) allows an employee to be off work but have job protection so that they can return to work after their leave. The FMLA provides 12 “work weeks” of protected leave for qualifying employees. The leave can be taken at one time or may be split up to smaller increments taken intermittently. The WHD opinion letter addresses whether an employee can be “charged” for days when they were on FMLA protected leave, but the business was closed for operation for some, but not all, days of the week. The scenario considered by the WHD was related to schools and school employees, in situations when the schools are closed due to inclement weather. This could happen to a manufacturing facility as well, so the letter is instructive on how the closure affects the leave calculation. This opinion can be extrapolated to other scenarios when an unexpected closure occurs with the company, such as power failure, equipment failure, fire, or other temporary incidents.
The WHD stated that in the event of an unscheduled closure, the following analysis will determine the leave calculation:
1) The employee is approved to take leave for less than a full work week, and
2) The closure happens on the day(s) that the employee was to be off on FMLA leave, then
3) The employee’s FMLA leave allotment is NOT charged for the day(s) off work when the business was closed anyway.
However, for situations where the leave is for the entire work week and the business is closed for a portion of the week, the employee’s FMLA allotment can be charged for the entire work week, including the days that the business was closed. The following conditions must be met in that situation:
1) The employee was approved for leave for an entire work week, and
2) The closure happens for only a portion of the work week, and
3) The employee was not expected to be at work at all that week.
Travel Time for FMLA Qualifying Treatment and Medical Care
Another leave question was answered by the WHD about whether the travel time that an employee needs to go to a doctor’s appointment or other qualifying continuing treatment can be included in the FMLA leave. The opinion letter on this issue gave a clear answer: Yes.
When an employee travels to and/or from an appointment with a health care provider for a medical appointment or continuing treatment for their own or a family member’s serious health condition, that time is protected by the FMLA. If that travel time is used improperly, for example, by stopping for unrelated activities, it will not be protected by FMLA, and the employee could be subject to discipline for that misuse.
Summary
Decoding federal regulations is challenging for HR professionals. The WHD opinion letters are an excellent way for regulators to communicate real world application of the regulations. The Alliance will continue to provide summaries of these opinion letters when they are applicable to companies in the printing industry.
In this article, Adriane Harrison, VP of Human Relations Consulting, PRINTING United Alliance, provides an update on recent Department of Labor opinion letters. Adriane also provides information about labor and employment laws and regulations at the Center for Human Resources Support or reach out to Adriane directly if you have additional questions specific to HR issues that may affect your business at: aharrison@printing.org.
To become a member of the Alliance and learn more about how our subject matter experts can assist your company with services and resources such as those mentioned in this article, please contact the Alliance membership team: 888-385-3588 / membership@printing.org.