DOL Clarifies Rules for Meal Breaks, Volunteer Time, and Shared Tips

On September 7, 2026, the U.S. Department of Labor Wage and Hour Division issued three Opinion Letters relating to requirements for employee compensation under the federal Fair Labor Standards Act (FLSA). As discussed below, the letters addressed the minimum duration for unpaid meal breaks, whether nonprofit employees can also be unpaid volunteers, and whether managers can lawfully share in an employee tip pool.

In FLSA2026-11, the agency addressed the issue of meal breaks. An employee’s collective bargaining agreement provided a 60-minute unpaid meal break each workday. However, employees were not allowed to eat in their work area, and the walk to and from the authorized break area consumed between 6 and 14 minutes of the break period. The employee questioned whether the time spent walking to the break area should be compensable work time. The DOL distinguished between a short, paid “rest break” of up to 20 minutes and an unpaid “bona fide meal period,” during which the employee is free from any duty to perform work. The DOL advised that a bona fide meal period is usually at least 30 minutes long and, in any event, must provide sufficient time for the employee to eat a meal. Because the employees in this scenario had at least 46 minutes to eat, the DOL found the time was sufficient for an unpaid meal break. The DOL declined to address whether the situation might violate the employee’s collective bargaining agreement or the National Labor Relations Act (NLRA).
 

In FLSA2026-12, a nonprofit organization inquired whether it could allow its exempt employees to volunteer to perform unpaid work for the benefit of the organization. The nonprofit breeds, raises, and trains puppies and dogs that will later be trained as service animals. Some management employees wished to volunteer to socialize puppies and dogs at their homes, outside their regular work hours. Applying FLSA provisions that allow public sector workers to volunteer to perform services that are not the same as the services for which they are employed, the DOL determined this would also be permissible in the nonprofit sector so long as the services are “offered freely and without pressure or coercion, direct or implied, from an employer.” But the DOL explicitly confirmed that “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 also explained a distinction between exempt and nonexempt employees volunteering. Where an exempt employee volunteers to perform additional services that are the same as those performed in their paid job, the employee would not be entitled to any additional compensation so long as the employee’s primary job duties continue to meet the requirements for the applicable overtime pay exemption and the employee is paid at or above the weekly minimum on a salary basis. On the contrary, a nonexempt employee performing services outside their regular work schedule that are the same as those performed in their job would be subject to the FLSA’s minimum wage and overtime pay requirements for the additional work.
 
Finally, in FLSA2026-13, a server asked whether it is permissible to require participants in a “tip pool” to share tips with their “shift supervisor” who tends bar or assists hosts or bussers with their duties. The DOL began by noting that the FLSA prohibits an employer – including a “manager or supervisor” – from keeping any portion of employee tips. The only exception allows the manager or supervisor to keep tips paid to them directly for services they personally perform. For purposes of determining entitlement to tips, a “manager” or “supervisor” is an employee who qualifies as an exempt Executive employee under the FLSA’s white-collar overtime pay exemptions (see the DOL’s explanatory Fact Sheet #17B). The DOL then noted that even though managers and supervisors cannot share other employees’ tips in a tip pool scenario, an employer can require them to contribute tips they receive into the tip pool for the benefit of other employees.
 
While the facts were not sufficient to determine whether this “shift supervisor” qualifies as an exempt executive employee, the DOL confirmed that “section 3(m)(2)(B) of the FLSA prohibits a supervisor in your workplace from keeping any portion of other employees’ tips, regardless of whether the supervisor also works as a bartender or assists other employees.” An employer who allows its managers or supervisors to participate in tip sharing is required to return the tips to the eligible employees and could lose the ability to count employees’ tip income toward their required minimum wage, meaning they could no longer rely on tips to make up the difference between the minimum $2.13 per hour for tipped employees and the minimum wage.
 
The attorneys and HR professionals at Lake Effect can provide guidance on FLSA compliance and other employment-related agency and legislative actions, employment laws, regulations, and agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253 or by visiting our website. 

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