Last month, the United States Department of Labor’s Wage and Hour Division (“WHD”) issued three new opinion letters on recurring wage and hour questions under the Fair Labor Standards Act (“FLSA”). The letters cover (1) whether a meal break can be unpaid when employees must walk several minutes to a designated break area, (2) whether exempt employees of a nonprofit may volunteer for their own employer without pay, and (3) whether a restaurant shift supervisor who also tends bar may share in other employees’ tips. Each letter is an official WHD interpretation that provides helpful guidance when analyzing similar fact scenarios that arise under the FLSA.
Meal Breaks and Walking Time (FLSA2026-11)
The first letter describes a security therapy aide at a detention facility who receives a 60-minute unpaid lunch break. Employees cannot bring food beyond the entry building and must walk three to seven minutes each way to a designated break area for lunch. This leaves employees 46 to 54 minutes of their one-hour unpaid break to eat lunch.
The WHD explained that even though the employees must walk several minutes to take their lunch break, the break still qualifies as a bona fide, non-compensable meal period. The primary question when determining whether the break must be paid is whether employees are relieved from duty during the break. Ordinarily, 30 minutes or more is long enough for a bona fide meal period to be unpaid. Shorter rest breaks of up to 20 minutes must generally be paid. A meal period can become compensable if travel time, frequent or lengthy interruptions, or restrictions significantly reduce the break. Here, even with the longest reported travel time, employees receive at least 46 minutes for an off-duty meal break. That allotment is well over the 30-minute benchmark. Accordingly, the WHD found the break not compensable because employees are relieved from work duties during the break and the period is long enough for employees to use it for the purpose of eating a meal, even accounting for the travel time. The WHD explained that “[w]hen employees need just a few minutes of travel time to access a break room or other location where they can eat their meal, that time is generally not compensable.” Employers who require employees to eat at a specific location should confirm that the remaining time is enough to eat a meal and that employees are truly relieved from work during their unpaid breaks.
Nonprofit Employees Volunteering for Their Employer (FLSA2026-12)
In FLSA2026-12, a nonprofit that breeds and trains service dogs asked whether its exempt veterinarians, service dog instructors, and directors could volunteer to raise puppies in their homes outside of work hours. The WHD explained that nonprofit employees may volunteer for their employer if they do so freely and without coercion, with no expectation of pay, and only perform work that is not the same as or similar to the work they are employed to perform. An employee cannot be both a paid employee and an unpaid volunteer doing the same type of work for the same employer. Employees also cannot waive their right to pay under the FLSA by calling the work “volunteering.”
Applying these rules, the WHD concluded that veterinarians (who provide medical care) and directors (who supervise staff) could likely volunteer for their nonprofit employer by raising puppies outside of working hours because puppy raising is sufficiently different from their paid jobs. This determination does not change even if the veterinarians and directors are classified as non-exempt, hourly employees.
In contrast, the WHD explained that the nonprofit’s trainers likely could not volunteer to raise puppies at home because the volunteer activity of raising puppies is the same or similar to the trainers’ paid work of training and caring for dogs. The WHD noted that any juvenile canine socialization services the trainers might perform at home are not volunteer services, but rather part of the employment relationship and work subject to payment under the FLSA. The WHD opined that if the trainer remains exempt under the applicable duty and salary tests, the trainer’s salary could serve as compensation for any hours spent raising puppies at home, and no additional compensation would be required.
In sum, if “volunteer” time is actually part of the employment relationship, non-exempt employees must be paid for all hours worked. For exempt employees, the salary may cover the additional volunteer work, provided the employee’s primary duty remains exempt work and the salary requirements are still met. Before accepting volunteer help from employees, nonprofits should compare the volunteer tasks to each employee’s actual job duties. Volunteering should be truly optional, unpaid (other than permitted expenses, reasonable benefits, or a nominal fee), and free from any pressure. Where extra work by an exempt employee is part of the job, employers should keep track of whether it could change that employee’s primary duty resulting in a non-exempt classification.
Restaurant Supervisors Dipping Into Tip Pools (FLSA2026-13)
A restaurant server asked whether a “shift supervisor” who also works bartending shifts and helps hosts and bussers perform their duties could collect a share of servers’ “tip outs.” The WHD answered in the negative if the shift supervisor qualifies as a manager or supervisor under the executive exemption’s duties test.
The FLSA prohibits employers, managers, and supervisors from keeping employees’ tips, regardless of whether the employer claims a tip credit. An employee is a “manager” or “supervisor” for this purpose if their duties match the executive exemption duties test: a primary duty of management, regularly directing the work of at least two full-time employees, and authority to hire or fire (or recommendations that are given particular weight). The salary test does not apply, and job titles do not control.
A supervisor who fills in as a bartender or helps tipped staff during their shifts may not receive any portion of other employees’ tips, including through a “tip out” or “tip pool.” The supervisor may keep tips received directly from customers for service the supervisor “directly and solely” provided, such as tips from tables the supervisor covers alone. If those tips are combined with other employees’ tips and cannot be traced specifically to the supervisor, the supervisor may not take any share. Employers may still require supervisors to contribute tips they receive directly to an eligible tip pool.
Violations can result in repayment of the improperly kept tips and the loss of the tip credit for affected employees whose tips the supervisor improperly kept. Employers with tip pools should review which employees qualify as managers or supervisors under the executive exemption duties test and remove those employees from tip pool distributions.
Compliance Considerations for Employers
These opinion letters show that the answer to many wage and hour questions turns on the specific facts and job duties employees actually perform, not on labels or policies alone. FLSA claims for unpaid wages can involve liquidated (double) damages along with recovery of the plaintiff’s attorneys’ fees. Employers facing similar issues to the ones addressed in these letters should consider the following steps:
- Review meal break policies, especially any requirements that employees eat in a set location, to confirm that employees have enough uninterrupted time to eat after any required travel.
- For nonprofits, compare any employee volunteer tasks to the employee’s regular job duties to confirm they are different and make sure volunteering is truly voluntary and unpaid.
- Audit tip pool and tip out arrangements to identify employees whose duties meet the executive duties test, regardless of job title, and ensure such employees receive no portion of other employees’ tips.
If you have wage and hour questions or need legal assistance reviewing your meal break, volunteer, or tip pool practices, contact the employment law attorneys at Poyner Spruill.