Council postpones vote on hiring law firms
Londonderry’s Town Council is at odds over legal matters pertaining to hiring outside law firms to handle complaints and allegations of misconduct against the town manager.
U.S. DOL issues 4 new wage, hour opinion letters
On May 28, 2026, the U.S. Department of Labor’s Wage and Hour Division (DOL) published four new opinion letters addressing a variety of Fair Labor Standards Act (FLSA) questions. Below are key takeaways for employers.
1. Exempt employees may be paid for additional shifts without losing their exemption.
Many employers — particularly in health care, hospitality and other shift-based industries — have salaried-exempt employees who occasionally pick up hourly shifts in a non-exempt role. Opinion Letter FLSA 2026-5 confirms that paying an hourly rate for that extra work does not jeopardize the exemption, provided two conditions are met: The employee’s primary duty must remain exempt work, and the employee must continue to receive the full guaranteed salary each week regardless of scheduling. The additional hourly pay is treated as permissible “additional compensation” under the regulations and is not a threat to the salary basis. Employers using this structure should document it and confirm the exempt role consistently predominates.
2. Certain bonus payments to nonexempt employees do not require overtime recalculations.
When non-exempt employees who work overtime receive a non-discretionary bonus, such as on a quarterly or annual basis, employers must normally go back and recalculate each employee’s “regular rate of pay” for every workweek in the bonus period and pay any additional overtime premium attributable to the bonus, which can be a time-consuming exercise. Opinion Letter FLSA2026-6 confirms that employers may avoid this recalculation by using the “percentage of total earnings” formula. Such a bonus distributes the bonus pool in proportion to each employee’s total compensation: straight-time and overtime combined. For example, if the total bonus pool to be allocated to employees is $100,000 and a particular employee’s earnings made up 5% of the department’s total earnings, that employee will receive a $5,000 bonus under the “percentage of total earnings” formula. The DOL explained that, because overtime is already included in the formula, no re-computation is needed. 3. The start time for meal breaks is when the employee is relieved from duty, regardless of the walk time to a parking lot.
Employers operating large or secured facilities, such as manufacturing plants, distribution centers and medical campuses, often hear complaints that a 30-minute lunch break leaves no time for off-site dining once employees factor in the walk to the parking lot and security clearance. In seeking the opinion letter, employees asserted that this creates a “coercive dynamic” that discourages employees from taking meal breaks off-site and violates the FLSA. Opinion Letter FLSA2026-7 makes clear that a break is bona fide and unpaid as long as the employee is fully relieved of duties and has the option to eat on-site. The FLSA does not require employers to permit employees off the premises, and a layout that makes offsite dining impractical does not convert the break into compensable time. That said, the DOL made it clear that the break must be genuinely freed from work. Employers should also remember that New Hampshire law independently requires a 30-minute, duty-free meal period after five consecutive hours of work.
4. Timekeeping rounding systems may create risk.
Opinion Letter FLSA2026-8 addresses a hospital’s rounding system where nonexempt employees clock in up to seven minutes early and immediately begin pre-shift work. The timekeeping system always rounds these early clock-ins to the scheduled start time, so employees are never paid for those preliminary minutes of work (e.g., if an employee clocks in at 7:53 a.m., it is always rounded up to 8:00 a.m.). The DOL identified two concerns with the practice. First, pre-shift activities that are “integral and indispensable” to employees’ principal duties are compensable regardless of when the formal shift begins, such as reviewing patient charts and receiving handoff reports. Second, rounding is only permissible if neutral and balanced in application over time; a policy that consistently benefits only the employer fails that test, particularly when the employer’s own timekeeping system can capture the exact time worked.
What should employers do now?
These four letters provide a timely opportunity for employers to review wage and hour practices. If your organization uses salaried-exempt employees in nonexempt roles, document the dual-role structure and confirm the exempt role predominates. If you run a non-discretionary bonus program for overtime-eligible employees, evaluate whether restructuring it as a percentage of total earnings bonus would eliminate retroactive recalculation obligations. If your facility makes off-site meals impractical, confirm meal breaks are duty-free and that a reasonable on-site option exists. And if your timekeeping system rounds time, audit it now — particularly if employees routinely perform compensable work before the clock officially starts. While DOL opinion letters are not binding law, they are the DOL’s official interpretation of the FLSA and afford protection to employers who rely on them in good faith.
Margaret “Peg” O’Brien is chair of McLane Middleton’s Employment Law Practice Group. She can be reached at margaret.obrien@mclane.com.
