DOL’s First Batch of Trump 2.0 Opinion Letters Address Tip Pools, Emergency Pay + Joint Employment

Takeaways 

• The Department of Labor Wage and Hour Division released three new FLSA opinion letters on 09.30.25, the first issued by the second Trump Administration.
• The opinion letters address which restaurant employees can participate in a tip pool, whether firefighters’ emergency pay must be factored into their regular rate of pay, and whether two physically connected entities with shared operations are joint employers under the FLSA.
• Although the opinion letters do not break new ground, they provide useful examples of how the government interprets important provisions of the FLSA. 

Related links 

• Tip pool opinion letter: FLSA2025-03
• Firefighters’ emergency pay opinion letter: FLSA2025-04
• Joint employer opinion letter: FLSA2025-05
• DOL Opinion Letters page

Article

The U.S. Department of Labor Wage and Hour Division issued three new opinion letters interpreting the Fair Labor Standards Act (FLSA) on Sept. 30, 2025. The letters are the first of the new administration and clarify restaurant tip pools, regular rate of pay calculations and joint employment.

Tip Pool Participation

The acting wage and hour administrator advised that “front-of-house” oyster shuckers at a seafood restaurant may be included in a tip pool with servers for whom the restaurant takes a tip credit (FLSA2025-03).

The DOL explained that “to be an individual who customarily and regularly receives tips, an employee must engage in service-related functions and have sufficient interaction with the customers who leave tips, a portion of which are subsequently contributed to a tip pool.” In this instance, the oyster shuckers directly interact and engage with customers by sharing and detailing oyster offerings, making suggestions regarding the oyster offerings and fielding other questions about the different options, while preparing the oysters for and in front of the customers. 

While the opinion letter addresses oyster shuckers, it provides a useful example of the applicable analysis when determining which restaurant staff may participate in a tip pool when a tip credit is taken.

Separate Entities Are Joint Employers

Responding to an opinion letter request from a hostess who works at a hotel restaurant and a separate “members only” club on the second floor of the restaurant, the acting administrator concluded the employee was jointly employed by the establishments. Therefore, the hours worked at both establishments must be combined when calculating the number of hours worked for overtime purposes. Also, as joint employers, the establishments would be jointly and severally liable for any FLSA violations (FLSA2025-05).

The restaurant and club are separate legal entities and may use different payroll and timekeeping systems. However, the acting administrator wrote, “corporate formalities do not necessarily override the FLSA’s application.” The opinion letter notes the entities’ physical proximity and that they are operationally integrated, with similar trade names, shared management and shared ownership. The establishments use a common kitchen and offer a near-identical menu. Other indicators of joint employment here include employees clocked in with the restaurant occasionally are assigned to work upstairs at the club; there are identical rates of pay at each facility; and the additional lunch shifts being offered to the hostess at the members club did not conflict with her standard restaurant schedule, which suggests the entities are coordinating employee scheduling.

Joint employment status under the FLSA has been in flux, even as contracting and third-party work relationships continue to grow and litigation asserting joint employer liability is on the rise. The first Trump Administration issued a joint employment regulation in 2020, but it was rescinded by the Biden DOL, which never issued a replacement. In its recent semiannual agenda, the DOL said it intends to issue a proposed rule on joint employment under the FLSA.

Emergency Pay for Firefighters

The acting administrator advised that “emergency pay” to firefighters and other municipal employees who perform extra work due to a disaster is not a discretionary bonus and is not excludable as a discretionary bonus under section 7(e) of the FLSA. Therefore, the emergency pay must be included in the regular rate of pay when computing the overtime rate (FLSA2025-04).

According to the opinion letter, the city’s policy requires “designated emergency employees” to work during “emergency periods” due to a disaster or emergency. The hours worked during emergency periods are compensated at a premium rate of one-and-one-half the regular hourly rate. Although the emergency pay policy was first implemented at the employer’s discretion, the policy allows no discretion in determining whether to pay once the employee performs work during an emergency period or the amount of emergency pay due. Therefore, the payment is not excludable from the regular rate as a discretionary bonus. The acting administrator also considered whether the emergency pay satisfies other exclusions from the regular rate and concluded they do not apply in this scenario.

Determining what compensation must be included in the regular rate of pay and calculating the regular rate are perennial compliance challenges. The opinion letter provides a helpful analysis of the factors for determining whether pay is excludable and an example of how to calculate the regular rate with a half-time premium included.

Opinion Letter Program

The DOL announced in June 2025 that it would launch an expanded opinion letter program, consistent with the agency’s renewed focus on compliance assistance. A robust opinion letter program would be welcome news for employers, as opinion letters offer useful guidance on how the DOL may apply the FLSA in specific-fact situations. 

Employers can review opinion letters and submit requests on the DOL’s Opinion Letters page. An opinion letter can be a valuable defense for an employer to avoid a finding of a “willful” violation of the FLSA in a lawsuit related to the matter addressed in the guidance on which it relied.

Reach out to your Jackson Lewis attorney with any questions or for assistance in preparing an opinion letter request.