Easy as 1, 2, 3: DOL Issues Three Opinion Letters on Meal Breaks, Volunteering, and Supervisor Tips

On September 7, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) released three new opinion letters which provide employers practical guidance on Fair Labor Standards Act (FLSA issues including: (1) unpaid meal breaks and the time employees spend walking; (2) whether non-profit employees may volunteer for their employer; and (3) whether managers and supervisors may keep employees’ tips. While instructive, California employers should take these letters with a grain of salt since California laws often have stricter compliance requirements. Those distinctions are outlined in greater detail below.

• FLSA2026-11: Unpaid Meal Breaks and Employees’ Walking Time To and From the Break Area May Not Be Compensable

Key Takeaway: If employees are fully relieved of duties during a 60 minute meal period, a few minutes spent walking to and from the break area is generally not compensable and satisfies a bona fide meal period. But California employers beware. 

The DOL addressed an issue involving employees walking three to seven minutes to and from their meal break area. Importantly, employees had a 60-minute meal period and after subtracting their walking time, still had 46 to 54 minutes for their meal period. The DOL stated that a 46 to 54 minute meal period, which includes the employees’ walking time to and from the break area, and still counts as a valid meal period where the employee is relieved of work duties during that time, because the employee still had 30 minutes of uninterrupted meal time. On the other hand, if the meal period is reduced to less than 30 minutes as a result of travel time, it may result in meal period violations under the FLSA.   

For example, if employees are required to eat at a specific location which takes 15 minutes of their 30-minute meal break to travel to and from, it would result in non-complaint periods. But it is not absolute, as courts have held that travel time of “no more than a couple of minutes” to the break area do not render the meal break non-compliant.[1] 

California employers should be aware that California requirements are stricter than the Federal requirements. In California, the full 30-minute meal break must be provided to be compliant. If walking or security lines render the employee with a less than 30-minute meal period, it may be non-compliant.

• FLSA2026-12: Non-Profit Employees May Volunteer For Their Employer If Certain Conditions are Met

Key Takeaway: A nonprofit employee cannot be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer.

The DOL addressed whether non-profit employees may volunteer outside of their normal work hours to perform services for the employing organization. The DOL stated that both exempt and non-exempt employees of a nonprofit organization may, freely and without coercion from the employer, volunteer to perform work that is neither the same nor of similar type as the work that the employee is employed to perform. A nonprofit employee cannot be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer. Additionally, employees cannot agree, or be required to “agree,” to waive their rights to compensation under the FLSA under the guise of volunteering.

Examples of permissible volunteering:

• An office employee of a hospital could volunteer to sit with a sick child or elderly person during off-duty hours as an act of charity.
• A bus driver for a school district could volunteer to be an assistant coach for the school’s basketball team because the duties performed by a bus driver are sufficiently different from those performed by a coach. 

 Example of non-permissible volunteering:

• A bus driver employed by a school district could not volunteer to drive the school’s basketball team to away games because an individual who is a bus driver provides a service of transporting students and driving a school bus constitutes the same  or similar service.

There are some exceptions for exempt employees. If an exempt employee performs the same or similar type of work, then it is not volunteer services. If the employee remains exempt under the applicable duty and salary tests, the employee’s salary could serve as compensation and no additional compensation would be required.

• FLSA2026-13: Managers and Supervisors May Not Keep Employees’ Tips (“Tip Out”, “Tip Pools”, etc.) 

Key Takeaway: Managers and supervisors who meet the “executive duties” test, may not keep a portion of other employees’ tips when also working with or assisting other employees. These practices are commonly referred as “tip pools” or “tip outs” in the service industry. 

The DOL addressed whether a “shift supervisor” can share in tips when assisting hosts, bussers, and servers, where the “shift supervisor” primarily performs management duties.

The DOL stated that if an employee satisfies the “executive” duties requirements[2] and is therefore a supervisor, he or she is prohibited from receiving any portion of tips from other employees—even if he or she also works bartending shifts alongside other employees or assists other employees performing tipped work.

Practically speaking, a manager or supervisor who meets the executive duties test and performs work alongside employees, may not keep any portion of other employees’ tips, and as a result, they may not participate in “tip pools” or “tip outs”. However, employers are not prohibited from requiring a manager or supervisor to contribute some portion of tips they receive to employee tip pools.

Managers and supervisors may keep tips given directly to them for service they directly and solely provided.

Example of when a supervisor may keep tips:

• A supervisor tends the bar, the supervisor may keep tips left by his bar customers during the period in which he is bartending. There, the tips are left for the services the supervisor solely and directly provided. 

Examples when supervisors may not keep tips:

• A coffee shop maintains a tip jar and point-of-sale system for customer tipping, a barista, who is regularly left in charge and meets the executive duties test as a supervisor, may not keep any portion of the tips the customers provide because it is not possible to attribute the tips solely to the service the employee provides.
• A supervisor employee’s tips and other bartenders’ tips are consolidated and split among all bartenders working that shift, and therefore, it is not possible to attribute the tip solely to the supervisor.

The penalties that apply here include recovery of the tips the supervisor “kept” and the concurrent disallowance of the tip credit (if applicable) for any affected tipped employees whose tips the supervisor improperly kept.

[1] Naylor v. Securiguard, Inc. 801 F.3d 501 (5th Cir. 2015)

[2] A “manager or supervisor” meets the “executive duties” test if they: (i) have a primary duty of managing the enterprise or a customarily recognized department or subdivision of the enterprise; (ii) customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and (iii) have the authority to hire or fire other employees, or his or her suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. Job title alone is not dispositive.