DOL Opinion Letters Shed Light on Meal Breaks, Volunteering and Tip Pools

The US Department of Labor (DOL) recently issued opinion letters providing insights about how the agency interprets meal breaks, volunteering and tip pools.

Although they do not carry the same legal weight as regulations, opinion letters can help limit employers’ liability in the event of a lawsuit or DOL investigation.

If an employer requests an opinion letter from the DOL, provides it with all the pertinent facts regarding its particular situation, receives an opinion letter and then follows it in good faith, it can be shielded from liability for Fair Labor Standards Act (FLSA) minimum wage and/or overtime violations involving the practices described in its letter.

Even if they had not requested an opinion letter themselves, other employers that have identical fact patterns also can be shielded from liability if they follow an opinion letter. However, an employer should exercise caution before relying on another employer’s opinion letter because any variation in the fact pattern can nullify its defense.

Meal Breaks

In Opinion Letter FLSA2026-11, the DOL said 60-minute meal breaks may be unpaid even if employees spend six to 14 minutes walking to and from their employer’s designated break area.

The FLSA does not require employers to provide meal breaks (although many state laws do). If an employer does provide meal breaks, it must pay employees for that time unless they are completely relieved from duty when eating regular meals. FLSA regulations say that 30 minutes or more is ordinarily long enough for a bona fide meal break.

When a meal break is significantly reduced through travel time, frequent or lengthy interruptions, or restrictions, then that meal break or portions of it may be compensable, the DOL said, citing a 2015 case in which security guards were required to eat at a location that required them to travel for 12 minutes out of their 30-minute meal breaks.

In contrast, the employees in the opinion letter had a meal break that was long enough for them to eat even with the required six-to-14-minute walk. “[T]he 46 to 54 minutes available for employees after arriving at the break area is more than enough for the purpose of eating a meal. Indeed, this amount of time is much longer than the 30 minutes that is ordinarily sufficient for a bona fide meal period,” the letter concluded.

Volunteering

In Opinion Letter FLSA2026-12, the DOL weighed in on volunteers.

The DOL noted its longstanding enforcement policy allowing employees of religious, charitable or nonprofit organizations to volunteer their services to their employing organization as long as they:

• Volunteer freely and without coercion, and
• Perform work that is neither the same nor similar to the work they are employed to perform.

“Put another way, 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 letter states.

Looking at different employees of a nonprofit organization that breeds and trains service dogs, the DOL concluded that some of the employees (veterinarians and directors) could volunteer to perform juvenile canine socialization because that work was different from the work they were employed to perform, while others (trainers) could not because canine socialization involves training.

Tip Pools

In FLSA2026-13, the DOL reaffirmed that supervisors may not keep tips or participate in tip pools.

Amendments to the FLSA enacted in 2018 prohibit an employer from keeping tips received by its employees for any purpose, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit. The term manager or supervisor means any employee whose duties match those of an overtime-exempt executive employee.

In its letter, the DOL considered the case of a “shift supervisor” who sometimes works shifts in which they perform typical bartending duties but also some management functions, including determining when employees’ shifts end, developing schedules and performing other managerial tasks.

The DOL concluded that it needed more information to judge whether the “shift supervisor” qualifies as an executive because the person requesting the letter did not describe the employee’s role in the hiring, firing or promotion of other employees (which are key factors for the executive exemption).