Earlier this month, the U.S. Department of Labor’s Wage and Hour Division issued a new round of FLSA opinion letters, including Opinion Letter FLSA2026‑1, which addresses the application of the “learned professional” exemption to a licensed clinical social worker. While much of the letter focuses on familiar exemption principles, one aspect of the DOL’s analysis serves as an important, and often overlooked, reminder for employers: even when an employee clearly qualifies for an exemption, the employer is not required to classify the employee as exempt.

The Basics of the Opinion Letter

The DOL’s opinion letter responds to a request from a licensed clinical social worker who had recently been reclassified from exempt to non-exempt by the employer.  The social worker noted that certain supervisory responsibilities had been removed from the job description, but the job duties still included clinical assessments, treatment planning, crisis intervention, and the consistent exercise of professional judgment — all duties typically associated with the Fair Labor Standards Act’s “learned professional” exemption.

The employee questioned whether the position should still be classified as exempt under the FLSA’s learned professional exemption notwithstanding the removal of the supervisory duties.

Loss of Supervisory Duties Does Not Defeat the Learned Professional Exemption

The DOL first addressed the employee’s underlying assumption: that removal of supervisory duties automatically defeated exempt status. The agency made clear that this assumption was incorrect. Unlike the executive exemption, which requires supervisory responsibilities in order to qualify, the learned professional exemption focuses on whether an employee’s primary duties require advanced knowledge in a field of science or learning customarily acquired through a prolonged course of specialized intellectual instruction. The DOL noted that licensed clinical social workers (who generally must obtain a master’s degree) typically satisfy the learned professional test when working in their field, and that supervisory responsibilities are not a requirement.

Compensation Still Matters

The DOL also emphasized a critical point that often gets overlooked in exemption analyses: meeting the duties test is not enough. Most professional exemptions, including the learned professional exemption, require compliance with the salary basis and salary level tests. In this case, the employer had converted the employee from a salaried employee to an hourly‑paid employee. The DOL explained that paying the employee on an hourly basis would likely defeat the exemption, regardless of how professional the job duties remained.

That conclusion, standing alone, was not especially surprising. However, the opinion letter did not stop there.

The More Important Takeaway: Exempt Status Is Optional

Perhaps the most significant portion of Opinion Letter FLSA2026‑1 is the DOL’s reminder that employers are never required to claim an exemption, even when all exemption criteria are met.  Implicit in the social worker’s request for an opinion letter was a presumption that an employee is entitled to be classified as exempt if the test is met.  The DOL made clear that when an exemption is available, it’s the employer’s prerogative whether to apply it.

As the DOL explained, the FLSA only prohibits the misclassification of non‑exempt employees as exempt. It does not require employers to classify employees as exempt just because an exemption is available. In other words:

• Employers may classify qualifying employees as exempt
• Employers may also choose to treat those same employees as non‑exempt even if an exemption is available
• The problem occurs when an employer classifies an employee as exempt when the exemption requirements are not actually satisfied

This distinction is sometimes misunderstood by both employees and managers. Exempt status under the FLSA is not a mandate; it’s a tool that employers may choose to use when available and appropirate.

Practical Implications for Employers

From a compliance perspective, the opinion letter reinforces several important principles:

• Employers have some flexibility in how they structure pay practices and classifications.
• Classifying employees as non‑exempt and paying them for all hours worked including overtime, can reduce litigation risk, even when an exemption might apply.
• Voluntary reclassification from exempt to non‑exempt is permissible, provided minimum wage and overtime requirements are met.  There may be scenarios when classifying an exempt-eligible employee as non-exempt makes more sense.  For example, if an exempt-eligible employee’s hours or work days vary greatly from week to week, but they rarely work overtime, it may be better to pay the employee on an hours-worked basis. 
• Employers should be cautious about assuming that “professional” or “salaried” automatically means “exempt.”

In practice, employers may choose non‑exempt classification for exemption-eligible for reasons entirely unrelated to job duties — including operational consistency, overtime predictability, or risk management.

Final Thought

Employers should pay careful attention to employee classification matters, and should consider consulting with employment counsel to ensure that they are in compliance.