Can You Contract Away the Overtime Requirements of the FLSA and other Wage Laws? Another Yes, No, Maybe.

“You can lead a horse to water, but you can’t make him drink.”

On January 5, 2026, the U.S. Department of Labor’s (“DOL’s”) Wage and Hour Division (“WHD”) issued a formal opinion letter which addressed whether a 15-minute pre-shift “roll call” for emergency dispatch workers could be classified as hours worked under the Fair Labor Standards Act (“FLSA”). See DOL Letter No. FLSA 2026-3. The unionized workers were staffing a call center for the local government. The employer was posing some questions related to a proposed collective bargaining agreement (“CBA”). In this case, WHD found that the proposed 15-minute mandatory roll call is considered hours worked because it is required duty time, defined essentially as hours worked in the CBA, and such time must be compensated under the FLSA. It thus also must be included in the employees’ total weekly hours for overtime purposes.

Under the terms of the proposal, the mandatory 15-minute roll call would be considered “hours worked” under the FLSA but would be excluded from being counted toward the calculation of overtime. The important point is that the proposed CBA expressly defined the roll call time as hours worked. Thus, as a matter of contract, it is defined as working time. Accordingly, WHD didn’t need to determine if it was preliminary. As a consequence of that CBA provision, the roll call time must be included in the overtime calculations as hours worked. The FLSA defines “hours worked” broadly, including all time an employee is required to be on duty or at a prescribed workplace, and activities made compensable by contract, custom, or practice. However, preliminary activities are generally excluded unless made compensable by agreement. Here, they were essentially made compensable by the terms of the proposed CBA.

But what if the proposed CBA was written differently? In its ruling, WHD discusses the partial overtime exemptions under sections 7(b)(1) and 7(b)(2) of the FLSA, which can relieve employers from paying overtime for hours over 40 per week if certain conditions are met, including specific work-hour limits and contractual terms. Supreme Court precedent now requires that WHD give the FLSA exemptions a “fair reading” unlike their prior narrow readings emphasizing the remedial purposes of the Act. Section 7(b)(1) applies if a CBA states employees will not work more than 1,040 hours in 26 weeks, with overtime paid over 12 hours per day or 56 hours per week. The proposed schedule with added roll call time would not exceed these limits, thus potentially qualifying for this exemption if the CBA includes the necessary language. And Section 7(b)(2) applies if a CBA guarantees a certain minimum and maximum number of hours over a 52-week period, with overtime paid over 12 hours per day, 56 hours per week, or 2,080 hours annually. The schedule with added roll call time would still need to stay below the 2,240-hour maximum, making this exemption potentially feasible if the CBA met all requirements.

WHD concludes that the 15-minute pre-shift roll call in this instance is compensable hours worked (as defined expressly in the proposed CBA) and thus the time must be included in weekly overtime calculations However, perhaps, the proposed CBA could be restructured to qualify for partial exemptions under sections 7(b)(1) or 7(b)(2), which would reduce or eliminate overtime liability if specific contractual and operational conditions are met. The key takeaway is that the roll call time is considered hours worked, and any different result would depend on the detailed terms of the CBA and compliance with statutory terms.