Labor & Employment Blog

On September 7, 2026, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued three new opinion letters addressing wage and hour questions that arise under the Fair Labor Standards Act (FLSA). The letters address three unrelated but common problems: whether an unpaid lunch break remains unpaid when employees must walk several minutes to reach the break area, when employees may volunteer for the nonprofit that employs them without entitling them to payment for their time, and whether a supervisor who also works as a bartender may keep a share of other employees’ tips.

Each letter turns on its specific facts, but together they give employers practical, up-to-date guidance on issues that regularly drive wage and hour disputes: meal break pay, unpaid volunteer work, and tip retention by managers.

Why This Matters

These letters are official interpretations of the FLSA that employers may rely on as a good faith defense under Section 10 of the Portal-to-Portal Act. They also signal how WHD will analyze these recurring issues in audits and litigation. Employers who provide unpaid meal breaks, engage employees as volunteers, or operate tip pools and “tip out” arrangements should review the guidance below and confirm their pay practices comport with it.

1.  FLSA2026-11: Unpaid Meal Breaks and Walking Time

This letter addresses a sixty-minute unpaid lunch break at a detention facility. Under a collective bargaining agreement, security therapy aides receive a sixty-minute unpaid meal period but are not allowed to eat at their work area. Instead, they must walk three to seven minutes each way to a designated break area, which leaves roughly forty-six to fifty-four minutes actually in the break area. Employees asked whether the walking time should be paid and whether the break still counts as a bona fide (unpaid) meal period at all.

WHD's Conclusion

The break is a bona fide meal period and does not have to be paid, including the walking time. WHD explained that a meal period is unpaid when the employee is relieved from duty and has enough time to use the break to eat a meal. In this situation, employees are fully relieved of work duties, and the forty-six to fifty-four minutes remaining after the walk is far more than the thirty minutes the Division treats as ordinarily sufficient for a meal.

The key point for employers is what drives the analysis. The length of the walk is not what matters. What matters is whether employees are relieved from duty and whether enough time remains to eat after any employer-required travel. WHD contrasted an earlier court decision in which a thirty-minute break was cut down to as little as eighteen minutes by up to twelve minutes of required travel—a situation where the shortened time might no longer be a real meal break. A sixty-minute break with a short walk does not raise that concern.

WHD also noted it was deciding only whether the time is compensable under the FLSA, not whether the arrangement satisfies the collective bargaining agreement, which is governed by the agreement’s own terms and applicable labor law.

Practical Takeaways

• A short walk to a break room or lunch area generally does not turn an unpaid meal break into paid time.
• The real questions are whether employees are fully relieved of duty and whether they have enough time left to eat. As a general rule, thirty minutes or more is long enough; rest breaks of twenty minutes or less must be paid.
• Be cautious where required travel eats up a large share of a short break. A few minutes of walking within a sixty-minute break is very different from twelve minutes of travel within a thirty-minute break.
• If employees perform any work during the meal period, the time generally becomes compensable. The employee must be relieved of duties for the break to remain unpaid.
• A collective bargaining agreement can promise more than the FLSA requires. Complying with the FLSA does not excuse an employer from its separate contractual obligations.

2.  FLSA2026-12: When Employees May Volunteer for Their Nonprofit Employer

This letter involves a nonprofit that breeds and trains service dogs. The organization relies on volunteers to raise and socialize puppies in their homes before the dogs receive specialized training. Several of the nonprofit’s employees, including veterinarians, dog trainers, and directors who oversee trainers, wanted to volunteer to raise puppies at home, outside of working hours, and without pay. The nonprofit asked whether its employees can do this without triggering an obligation to pay them.

WHD's Conclusion

Employees may volunteer for the nonprofit that employs them, but only if three conditions are met: (1) they volunteer freely and without any coercion; (2) they do not expect to be paid, and (3) the volunteer work is not the same as or similar to the work they are employed to do. If those conditions are satisfied, the volunteer time is not hours worked and does not have to be paid.

Applying that test, WHD reached different results for different jobs. Veterinarians (whose work is medical care) and directors (whose work is supervising staff) do work that is different enough from raising and socializing puppies, so they may volunteer to raise puppies at home. Trainers are different because training and socializing dogs is the very work trainers are employed to do. Their “volunteer” puppy raising would be too similar to their paid job. Trainers therefore may not volunteer to care for or train dogs at home. That time would be treated as work.

When volunteer work is too similar to an employee’s paid job, it becomes part of the employment relationship. For a non-exempt employee, all that time must be paid. For an employee who is properly classified as exempt (for example, under the executive, administrative, or professional exemption), the employer generally owes no additional pay beyond the established salary so long as the employee’s primary duty remains exempt work and the salary requirements continue to be met.

Practical Takeaways

• Employees of a nonprofit may volunteer for their employer, but only for work that is genuinely different from their regular job. And even then, the work must be performed freely, without coercion, and with no expectation of pay.
• An employee cannot be both a paid worker and an unpaid volunteer performing the same type of work for the same employer. If the volunteer duties look like the paid job, the time is compensable work.
• Whether two jobs are the “same or similar” depends on the actual duties, not the job title. Compare what the person really does in each role.
• For a properly exempt employee, extra work similar to the paid job usually does not require additional pay, provided the employee’s primary duty stays exempt and the salary requirements are met.
• Getting this wrong can be costly. Misclassifying paid work as volunteering can expose an employer to back wages, overtime, liquidated damages, and attorneys’ fees.

3.  FLSA2026-13: Managers and Supervisors May Not Keep Employees’ Tips

This letter involves a restaurant with a “tip out” arrangement in which servers share a percentage of their sales with bartenders, hosts, and bussers. A “shift supervisor” who primarily performs management duties also works bartending shifts occasionally and pitches in to help hosts and bussers. On those shifts, the supervisor collects a share of the servers’ “tip out.” The question: may the supervisor keep a portion of other employees’ tips?

WHD’s Conclusion

No. Under Section 3(m)(2)(B) of the FLSA, a manager or supervisor may not keep any portion of other employees’ tips. That is true even when the manager also works as a bartender or helps other tipped employees. The fact that the supervisor performs some tipped work does not change the answer.

Whether someone is a “manager or supervisor” for this rule depends on the employee’s actual duties, not the job title. WHD applies the FLSA’s executive duties test. The employee (1) has a primary duty of managing the business or a recognized department; (2) customarily and regularly directs the work of at least two full-time employees (or the equivalent); and (3) has authority to hire or fire, or whose recommendations on hiring, firing, or promotion are given particular weight. Owners with at least a twenty percent equity interest who are actively engaged in management also count as such. Notably, an employee can meet this test and be barred from keeping tips even if the employer does not treat the person as exempt from overtime.

There is one important exception. A manager or supervisor may keep tips that customers give directly to the manager for service the manager personally and solely provided. This could include tips left by the manager’s own customers while he or she is tending the bar. But if those tips are pooled or split among several bartenders, so that they cannot be attributed solely to the manager, the manager may not take any share. Violations carry real consequences. The manager must return the improperly kept tips, and the employer can lose its tip credit for the affected employees.

Practical Takeaways

• Managers and supervisors may never keep tips that belong to other employees, including through a tip pool or a “tip out,” regardless of whether the manager also performs tipped work.
• Job titles do not control. What matters is whether the employee’s duties meet the executive duties test. A “shift supervisor,” a “lead,” or even a “barista” who actually runs the operation can be a manager for this purpose.
• A manager may keep tips a customer gives directly to the manager for service the manager alone provided but not tips that are pooled or split such that they cannot be traced to the manager’s own service.
• The penalties can be significant and include recovery of the improperly kept tips plus loss of the tip credit for the affected employees, which can substantially increase an employer’s wage liability.
• Review who participates in tip pools and “tip outs.” Anyone with real managerial authority should be excluded from receiving other employees’ tips.

Bottom Line for Employers

These three letters address very different situations, but they share a common lesson. Wage and hour outcomes turn on the actual facts and duties, not on labels. An unpaid meal break stays unpaid only if employees are truly relieved of duty with enough time to eat; a volunteer is only a volunteer if the work genuinely is different from the paid job and offered freely without pay; and a manager is a manager (and barred from keeping others’ tips) based on what he or she really does, not the title on the schedule. Employers who assess these arrangements based on substance, and keep accurate records, are best positioned to avoid unexpected liability.

Recommended Action Items

• Review unpaid meal break policies, especially where employees must travel to a designated break area, to confirm employees are relieved of duty and have adequate time to eat.
• Confirm that employees are not performing work during unpaid meal periods and that any separate contractual break commitments are honored.
• Before accepting an employee as a volunteer, compare the volunteer duties to the employee’s paid job, and document that the volunteering is voluntary, uncompensated, and different in kind.
• Audit tip pools and “tip out” arrangements to ensure no manager or supervisor, measured by actual duties, receives other employees’ tips.
• Evaluate managerial status by duties rather than title, particularly for “working” supervisors who also perform tipped or front-line work.
• Keep accurate records of hours worked, break practices, and tip distributions to support compliance if questions arise.

This client alert is provided for general informational purposes only and does not constitute legal advice. Whether a particular meal break, volunteer, or tip arrangement is compensable or permissible under the FLSA depends on the specific facts involved. Please contact us to discuss how these opinion letters may affect your organization’s wage and hour practices.