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February 23, 2026
On January 5, 2026, the Wage and Hour Division (WHD) of the United States Department of Labor (WHD) issued four Opinion Letters addressing questions raised under the Fair Labor Standards Act (FLSA).
This article addresses the third of those four letters and is Part 3 of a 4-part series.
Opinion Letters provide official written interpretations from the WHD that address questions raised by individuals or organizations and explain how laws apply to specific factual circumstances. Opinion Letters are intended to promote transparent and consistent application of the FLSA, including to educate other individuals or entities that may be impacted by the issue presented.
In short, Opinion Letters provide valuable insights for employers and employees alike on important issues related to compensation and overtime rules.
The WHD’s third Opinion Letter (FLSA2026-3) addresses whether an employer can enter into a collective bargaining agreement (CBA) with a union that mandates a 15-minute “roll call” prior to each scheduled shift but excludes that time when calculating overtime under the FLSA.
The employees at issue are county 911 dispatch workers who work under a CBA that lays out specific work schedules to which the dispatchers are assigned, working 32 hours over each six-day period (less than the 2,080 hours per year for a typical 40-hour workweek). The county and union considered a proposal that would establish a mandatory 15-minute roll call prior to each scheduled shift to bring employees closer to 2,080 hours per year. Per the proposal, the mandatory roll call would be considered “hours worked” under the FLSA but would be excluded from counting toward the calculation of overtime.
Under the FLSA, the term “employ” means “to suffer or permit to work.” Work not requested but suffered or permitted is compensable work time. The WHD concluded that the roll call period would constitute compensable hours worked and must be counted for purposes of calculating any overtime pay.
Notably, Sections 7(b)(1) and 7(b)(2) of the FLSA provide partial overtime exemptions for employees working under bona fide CBAs and allow for longer workdays (up to 12 hours) or workweeks (up to 56 hours) without daily overtime, provided overtime is paid for hours exceeding these limits. Under those sections, if the employee works more than 1,040 hours in any consecutive 26-week period, or 2,240 hours in the specified 52-week period, the exemption no longer applies to that employee. Based on the facts as presented, the WHD found insufficient information about the CBA to state affirmatively whether the proposed CBA contains language meeting the requirements for either exemption. The WHD explained that the CBA could be structured to provide that the roll call would not automatically trigger the requirement to pay overtime compensation under the FLSA if the time spent in roll call caused the employee’s weekly hours to exceed 40, provided all the requirements under Section 7(b)(1) or (2) were otherwise met.
Employers with unionized employees should carefully review the CBA language to make sure the application is compliant with the overtime rules and any exemptions.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
