Workplace Compliance News & Resources

Who: All employers

When: Effective immediately

On January 5, 2026, the U.S. Department of Labor (DOL) released six new opinion letters that address various Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) topics, including using FMLA leave in conjunction with partial-week school closures, FMLA time travel for medical appointments, overtime exemptions, which bonuses to include in regular rate of pay calculations, and classifying employees as exempt. DOL opinion letters are not legally binding; they provide guidance for interpreting the law and how to apply it in the workplace.

Opinion Letter FMLA2026-1 states that a school closure counts against FMLA leave only if the employee is scheduled to work that day. There is an exception to that rule: If the employee is taking a full week of FMLA leave, they must count the full week against their leave even if the school closes for part of that week.

Opinion Letter FMLA2026-2 states that an employee may use FMLA leave for travel time to and from medical appointments related to the employee’s serious health condition or to care for a covered family member. Time spent on unrelated activities is not covered under FMLA.

Opinion Letter FLSA2026-1 states that the FLSA does not require employers to classify an employee as exempt even if that employee meets exemption criteria. Employers may choose to classify exempt employees as non-exempt as long as they comply with minimum wage and overtime requirements.

Opinion Letter FLSA2026-2 states that employers must include incentive bonuses for safety, attendance, compliance, and performance in the regular rate of pay for the purpose of calculating overtime pay. Employers may exclude only discretionary bonuses from the regular rate of pay calculations, and the bonuses in question do not meet the criteria since they fall under a plan that sets eligibility criteria and bonus amounts in advance.

Opinion Letter FLSA2026-3 states that a mandatory 15-minute pre-shift “roll call” required by a collective bargaining agreement is compensable time, and overtime rules apply. The FLSA has two partial exemptions under sections 7(b)(1) and 7(b)(2) of the FLSA that may apply depending on how the collective bargaining agreement is structured.

Opinion Letter FMLA2026-4 clarified the overtime exemption for certain commissioned employees of service and retail establishments. To be exempt from overtime pay:

• The regular rate of pay must exceed 1.5 times the federal minimum wage, regardless of a higher state minimum wage; and
• Commissions must exceed 50% of the compensation for a representative period of at least one month.

How:

• Familiarize yourself with the opinion letters.
• Seek legal counsel as needed.

Additional Resources:

U.S. Department of Labor Wage and Hour Division

FMLA2026-1

FMLA2026-2

FLSA2026-1

FLSA2026-2

FLSA2026-3

FLSA2026-4

Who: Employers that sponsor foreign workers

When: Submit comments by May 26, 2026

On March 27, 2026, the U.S. Department of Labor (DOL) proposed a rule in the Federal Register titled, “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals” in the United States. The proposed rule would increase the prevailing wage for permanent labor certification, H-1B, H-1B1, and E-3 visa programs. Employers must pay sponsored employees the higher of the prevailing wage the actual wage paid to similarly qualified U.S. workers in the area of intended employment.

The purpose of the rule is to bring the wages paid to foreign workers in line with wages paid to American workers in similar positions so as to reduce the incentive to replace American workers with foreign workers.

The proposed rule would force employers to use the Occupational Employment and Wage Statistics (OEWS) survey to determine wage levels or private wage surveys and other alternative wage survey data as an alternative to DOL wages. The proposed wage levels are set at percentiles of the OEWS wage data:

• Level I: entry-level, 34th percentile;
• Level II: qualified, 52nd percentile;
• Level III: experienced, 70th percentile; and
• Level IV: advanced, 88th percentile.

The public may comment on the proposed rule until May 26, 2026. Once published, the final rule will state the effective date and be applicable to new and pending wage determinations.

How:

• Submit your comments on the proposed legislation by May 26, 2026.
• Consider reviewing your job descriptions for visa positions to identify which ones may be impacted.
• Plan for wage increases for affected employees.
• Consult with a legal immigration attorney to identify which employees will be impacted.

Additional Resources:

Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States

Who: All employers with contractors, franchisors, or staffing agencies

When: Submit comments by June 22, 2026

On April 22, 2026, the U.S. Department of Labor (DOL) published a proposed joint employer rule titled, “Joint Employer Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act.” The purpose is to revise the definition of joint employer status under three federal wage and hour laws, thereby reducing the cost of compliance, increasing the DOL’s ability to enforce the law, and help workers understand their rights under the law.

The proposed rule sets standards for determining joint employer status in horizontal and vertical joint employment situations. Vertical employment is defined as “jointly employed by two or more employers that simultaneously benefit from the employee’s work.” The four-factor test allows employers to determine how much control the business has over another entity’s employees. The factors include whether the joint employer:

1. Hires or fires the employee;
2. Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
3. Determines the employee’s rate and method of payment; and
4. Maintains the employee’s employment records.

The proposed rule states that no single factor is dispositive in determining joint employer status and that the determination depends on all the facts in a particular case.

Horizontal joint employment is defined as “a situation where an employee works separate hours for two or more joint employers in the same workweek, and the employers are sufficiently associated with each other with respect to the employment of the employee that they are joint employers.” Two employers are sufficiently associated if:

• There is an arrangement between them to share the employee’s services;
• One employer is acting directly or indirectly in the interests of the other employer in relation to the employee; and
• They share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.

The existence of a business relationship between two employers—such as sharing a vendor or being franchisees of the same franchisor—does not automatically mean they are joint employers.

The National Labor Relations Board published a final joint employer rule in February 2026 that applies only to collective bargaining rights and unfair labor practices. That rule makes it more difficult for businesses to be held jointly liable for alleged labor law violations by staffing companies, contractors, franchisees, and other related organizations.

How:

• Submit comments on the proposed rule by June 22, 2026.
• Review your contracts, franchise agreements, and vendor agreements to determine whether you could be considered a joint employer.
• Familiarize yourself with state and jurisdictional joint employer rules.
• Continue to monitor rulemaking on the proposed law.

Additional Resources:

Joint Employer Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act

Questions and Answers – NPRM: Joint Employer Status Under the FLSA, FMLA, and MSPA