The US Department of Labor’s Wage and Hour Division (WHD) issued three opinion letters on September 7, 2026, that address important questions under the Fair Labor Standards Act (FLSA). Though these letters are fact-specific, they provide useful and practical guidance concerning (1) unpaid meal periods involving mandatory travel to and from a designated break area; (2) the circumstances under which employees of not-for-profit organizations may perform volunteer services for their own employer, and (3) whether a restaurant supervisor performing non-managerial work can keep non-supervisory employees’ tips.
Required Travel During an Unpaid Meal Break Does Not Necessarily Make the Entire Break Compensable.
In FLSA2026-11, the WHD considered whether a 60-minute unpaid meal period remained a bona fide, non-compensable meal period where employees were required to walk three to seven minutes each way to and from a designated break area. The employees worked at a detention facility where they were prohibited from bringing food beyond the entry building and were not permitted to eat at their work areas. As a result, employees spent approximately six to 14 minutes of their 60-minute meal period traveling to and from the designated eating area, leaving approximately 46 to 54 minutes for eating and personal activities.
The WHD concluded that the entire 60-minute period was indeed a bona fide meal period, despite the travel time, and therefore was non-compensable. The critical considerations were that employees were relieved of their work responsibilities and retained substantially more than the 30 minutes ordinarily regarded as sufficient for a bona fide meal period. Conversely, if travel, interruptions, or other restrictions substantially reduce the usable portion of a meal period, some or all of the period may become compensable. The opinion letter makes clear that mandatory travel during a meal period is not automatically compensable and that the amount of travel time is not itself determinative. Instead, the analysis focuses on whether employees are relieved from work and whether, after accounting for required travel and other restrictions, employees have sufficient time to eat a regular meal and engage in personal activities.
This guidance is particularly important for employers that operate large facilities, hospitals, manufacturing plants, campuses, warehouses, correctional facilities, or other workplaces where employees cannot conveniently eat at their workstations.
Not-for-Profit Employees May Volunteer for Their Employer, But the Work Must Be Truly Voluntary and Different From Their Regular Jobs.
In the second letter issued by the DOL, FLSA2026-12, the WHD addressed whether employees of a not-for-profit organization could voluntarily perform services for the organization outside their regular working hours. The not-for-profit operated a service-dog program and had employees, including veterinarians, trainers, and directors, who wanted to volunteer without additional pay to raise and socialize puppies in their homes outside of working hours.
The WHD concluded that employees of a not-for-profit may perform volunteer services for their employer without creating compensable working time if the services are offered freely, without coercion, without an expectation of compensation, and are not the same or similar type of services the employee is employed to perform. This is true regardless of whether the employee’s position is exempt or non-exempt.
The WHD emphasized that an employee generally cannot be both a paid employee and an unpaid volunteer while performing the same type of work for the same employer. For example, veterinarians and directors could potentially volunteer to socialize puppies because their regular duties, as described in the opinion request, were sufficiently different from puppy care and training. Trainers, however, could not volunteer to perform puppy training or care because those duties were the same or sufficiently similar to their regular employment.
The WHD warned that improper classification of employee activity as volunteer work can expose not-for-profit employers to significant liability, including back wages, overtime, liquidated damages, and attorneys’ fees.
Restaurant Supervisors May Not Share in Other Employees’ Tips Even When Performing Tipped Work.
Finally, in FLSA2026-13, the WHD confirmed that a manager or supervisor who satisfies the applicable “executive duties” test may not keep any portion of other employees’ tips, even when the supervisor also works as a bartender, server, or other tipped employee or assists other tipped employees during a shift. The opinion arose from a restaurant that required servers to “tip out” a percentage of their sales to bartenders, hosts, and bussers. One employee, designated a “shift supervisor,” primarily performed management functions, but periodically worked bartending shifts. While bartending, the supervisor continued performing managerial duties, including developing schedules and determining when employees’ shifts ended. The supervisor at times also assisted hosts and bussers and received portions of the tip-outs allocated to those positions.
The WHD reiterated the well-known rule that supervisors and managers cannot keep employees’ tips or receive tips from a tip pool. An employee’s actual duties and responsibilities, rather than the employee’s title, determine whether the employee is a “manager or supervisor” for purposes of the tip-pooling prohibition.
The WHD looks to the executive duties criteria in 29 C.F.R. § 541.100(a)(2)-(4) to determine whether an employee is a manager or supervisor, which includes:
- Having management of the enterprise, or a recognized department or subdivision, as the employee’s primary duty
- Customarily and regularly directing the work of two or more full-time employees or their equivalent
- Having authority to hire or fire employees, or have recommendations concerning hiring, firing, promotion, or other changes in employee status that are given particular weight.
Owners with at least a bona fide 20 percent equity interest and who are actively engaged in the restaurant’s management are also included.
All employers with tipped employees should regularly review and revise their policies to ensure compliance with federal and state laws to avoid oftentimes severe penalties.
If you have any questions regarding the content of this alert, please contact Cat Scott, partner, at cscott@barclaydamon.com; Jyla Serfino, law clerk, at jserfino@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.