September 07, 2026
U.S. DOL Labors on Labor Day – Issues 3 FLSA Opinion Letters
On Monday, September 7th, the U.S. Department of Labor’s Wage & Hour Division issued three new opinion letters addressing questions under the Fair Labor Standards Act (FLSA). The first may be applicable to employers generally. The second is applicable to those in the non-profit industry. The third to those in the restaurant industry. Here’s a quick summary with a link to each.
- An employer offers non-exempt employees a 60-minute, unpaid meal period. However, employees must walk up to 14 minutes round trip to a designated break area as they are not allowed to eat at their work area. Should those 14 minutes be paid because “[e]mployees are not fully relieved of their duties for the purpose of eating a meal until they can access their food in the designated break area”? WHD’s answer is, “No.” It explains, “The Division—and most courts—reject the ‘complete relief from duty’ standard and instead evaluate the compensability of meal periods under the predominant benefit test, although a few outliers continue to apply the former formulation.” Said another way, those 14 minutes are primarily for the benefit of the employee to get a meal. The employee is not required to go to the break area unless they want to eat a meal. The employee could choose to stay at the work area, engage in some other personal activity, and is not expected to perform any work during the hour. (FLSA 2026-11)
- May FLSA-exempt employees of a nonprofit organization volunteer, outside of their normal work hours, to perform services for their employing organization without jeopardizing their exempt status or requiring additional compensation? WHD’s answer is, “Yes.” It explains an exempt employee, “may perform additional…work without additional compensation if the employee’s primary
duty remains the performance of exempt work and the employee continues to satisfy the salary requirements for the exemption.” (emphasis added) (FLSA 2026-12) - Does the FLSA permit a restaurant supervisor who also works as a bartender to keep a portion of other employees’ tips and to what extent may that employee participate in a tip pool? To this question, WHD answers, “No.” However, if the employee covers a few tables because a server called out sick, the employee may keep the tips from customers at those tables for services that employee performed. (FLSA 2026-13)
