DOL’s Latest Opinion Letters Clarify Meal Break, Volunteering + Tip Pooling Rules

Takeaways

• One DOL opinion letter explained that a 60-minute meal break remains noncompensable even when employees must spend up to 14 minutes walking to and from a break area. 
• Another letter said nonprofit employees may volunteer for their employer if the volunteer activities are not the “same type of services” they are employed to perform.
• A third letter clarified that supervisors who meet the “executive” duties test cannot keep other employees’ tips but may retain tips received directly from customers for service the supervisor “directly and solely” provided.

Related links

• FLSA2026-11
• FLSA2026-12
• FLSA2026-13
• WHD Opinion Letters page

Article

The Department of Labor’s Wage and Hour Division (WHD) issued three new opinion letters on Sept. 7, 2026, addressing various Fair Labor Standards Act (FLSA) issues: meal breaks, including time spent traveling to and from meal breaks, employee volunteering at nonprofits, and supervisor participation in tip pools.

Travel Time Does Not Defeat Bona Fide Meal Period

FLSA2026-11 responded to an opinion letter request from a security therapy aide at a detention facility. The facility’s employees receive a 60-minute unpaid lunch break. Employees may not bring food beyond the entry building or eat at their work area. Therefore, they must walk three to seven minutes each way to a designated break area, leaving between 46 and 54 minutes to eat. The employee asked whether the full 60 minutes must be spent in the break area to constitute a bona fide noncompensable meal period.

The opinion letter explained that the therapy aide’s meal breaks comply with the FLSA’s 30-minute threshold sufficient for a bona fide meal period because, even at maximum walking time (14 minutes round trip), employees retain approximately 46 minutes to eat and attend to personal matters. The critical FLSA inquiry is not the length of the walk itself, but whether sufficient time remains for employees to eat a regular meal. The opinion letter noted that, depending on the circumstances, even meal periods that are less than 30 minutes may constitute a “bona fide” meal period under the FLSA “if employees have sufficient time to eat a regular meal.”

The letter distinguished the facts asserted here with those in Naylor v. Securiguard, Inc., 801 F.3d 501 (5th Cir. 2015), in which the court reversed summary judgment for the employer. In Naylor, security guards received a 30-minute meal break but spent up to 12 minutes of that break traveling to and from a mandated break location. The appeals court held that, while “a couple of minutes” of travel does not undermine a meal break, 12 minutes out of 30 could allow a reasonable jury to find the remaining time insufficient.

WHD also reaffirmed its application of the “predominant benefit” test to the meal period analysis (rather than the stricter “complete relief from duty” standard applied by a minority of courts). Under the predominant benefit test endorsed by DOL, a meal period remains noncompensable so long as employees are predominantly free to use the time for personal purposes. The U.S. Courts of Appeals for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have all adopted the predominant benefit approach. (In contrast, the Ninth and Eleventh Circuits apply the stricter “complete relief from duty” standard, under which even minor residual duties or restrictions during a meal period may render the time compensable.)

Under the DOL’s analysis, the key inquiry is whether employees retain sufficient uninterrupted time to eat a regular meal and attend to personal matters — not whether every conceivable duty has been lifted.

Volunteering and “Same Type of Services” Test

FLSA2026-12 addressed whether and under what circumstances an employee can also volunteer for the same employer without additional compensation. The opinion letter involved a private nonprofit organization that breeds and trains service dogs for visually impaired individuals and veterans with PTSD that employs several exempt employees (e.g., veterinarians) who wish to serve as “puppy raisers” for the employer after their regular work hours. As volunteers, they provide basic care, early training, and socialization for juvenile dogs in their homes before the animals progress to specialized facility-based training. Volunteering is neither a job requirement nor an employment benefit; employees simply wish to contribute in this capacity.

The opinion letter noted the FLSA does not include an express volunteer provision for private nonprofits comparable to the public-sector provision in Section 203(e)(4)(A). But WHD has long applied a three-part framework: Employees may volunteer for their own employer provided they do so (1) freely and without coercion, (2) with no expectation of pay, and (3) the volunteer work is not the “same type of services” they are employed to perform.

The third requirement was critical to the analysis here and could lead to different conclusions depending on the employee’s role. Veterinarians can volunteer, the letter advised, because their job duties involve providing medical care (diagnosing and treating sick or injured dogs), which sufficiently differ from the routine care, socialization, and early training involved in puppy raising. Directors also can volunteer, because their role is to supervise employees, not provide direct care or training for the dogs. Trainers, however, likely cannot volunteer without pay. If they are employed to provide specialized training or to care for and socialize dogs, those duties are the same type as the puppy raiser role. Therefore, the volunteer exception to compensation does not apply to trainers.

When the FLSA’s conditions for volunteering are not met, the employer:

• Must pay non-exempt employees for all combined hours worked, including the purported “volunteer” hours.
• Need not pay exempt employees additional compensation beyond the predetermined salary, provided the employee’s primary duty remains exempt work (and salary requirements continue to be met). However, if the additional puppy-raising responsibilities shift the employee’s primary duty away from exempt work, the exemption itself may be jeopardized.

Supervisor Tip Pool Participation

FLSA2026-13 addressed a frequent question in the restaurant and hospitality industries: Whether a supervisor who also works in a role that generates tips may participate in a tip pool, where tips are shared among other tipped workers.

In the facts presented in the opinion letter, a restaurant shift supervisor periodically worked bartending shifts, performing standard bartending duties while carrying out management functions, such as setting schedules and determining when other employees’ shifts would end. When bartending, the supervisor collected a “tip out” from servers and also received a portion of tip-outs designated for hosts and bussers when assisting those employees. WHD concluded this arrangement violates the FLSA because Section 3(m)(2)(B) prohibits “managers or supervisors” from retaining other employees’ tips.

Whether an employee qualifies as a “manager or supervisor” under the FLSA’s tip provisions depends on whether the employee satisfies the duties test for the executive exemption to minimum wage and overtime pay requirements. The executive exemption requires the employee to (i) have a primary duty of managing the enterprise or a recognized department, (ii) customarily and regularly direct the work of at least two full-time employees, and (iii) have hire/fire authority or makes recommendations that carry particular weight. (The salary threshold for the executive exemption does not apply to this determination.)

The opinion letter explained that if the employee is a “manager or supervisor,” the employee is prohibited from receiving other employees’ tips through any tip pool or tip-out arrangement even if they work in a position that also generates tips.

A supervisor may retain tips, however, received directly from customers for service the supervisor “directly and solely” provided. If the supervisor, for example, tends bar and a customer leaves a tip specifically for the supervisor’s service, that tip may be retained, provided it is clearly attributable solely to the supervisor’s own work. In contrast, a restaurant manager who assists servers and bussers during a busy period cannot retain any tip-outs because the tips cannot be attributed solely to the manager’s service.

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WHD opinion letters offer useful guidance on how the agency may apply the FLSA in specific situations. 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. Employers can review opinion letters and submit requests on the DOL Opinion Letters page.

DOL opinion letters address only federal requirements. Many states maintain their own meal break, volunteer, and tip pooling rules that may impose more restrictive standards. Employers should always verify compliance with applicable state and local requirements as well.

Contract your Jackson Lewis attorney if you have questions about the WHD’s most recent opinion letters or for assistance in preparing an opinion letter request for your organization.