New Wage and Hour Opinion Letters

By Al Vreeland - Lehr Middlebrooks Vreeland & Thompson, P.C.

September 14, 2026

As we reported last summer, the second Trump administration decided to revive the use of Opinion Letters to explain its view on how certain laws should be enforced. An Opinion Letter is a response to a written request by an employer or employee on how a particular law (most often the Fair Labor Standards Act) applies to a specific factual scenario (e.g., is an employee in this scenario properly classified as exempt). Although the letters are limited to the specific facts of the request, they provide a wealth of guidance to other employers on how to comply with the law.

On Labor Day, the Wage and Hour Division issued three such advisories:

Meal Breaks: An employer provided a 60-minute unpaid meal break (pursuant to a collective bargaining agreement), in which employees must spend 6-14 minutes total walking to and from the designated break area. WHD reasoned that, in most cases, a 30-minute meal break provided adequate time for a bon fide meal break, but it might not in other cases where the travel time significantly reduces the free time to eat. In this case, the employee would have a minimum of 46 minutes to eat, which was adequate and therefore would not be compensable time.

Volunteer Service: A private, non-profit allows exempt employees to volunteer to provide services (puppy sitting) that are different from their regular duties. WHD points out 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. However, both exempt and non-exempt employees may be an unpaid volunteer if both: (1) they truly volunteer without coercion and (2) the volunteer duties are different from their regular duties. Even if both conditions are not met, exempt employees can perform these extra duties without additional compensation if their “primary duty” remains exempt work.

No Manager in Tip Pool: The FLSA prohibits a manager from participating in a shared tip pool with other employees. This is true even if they perform tipped functions (e.g., bartending, filling in for an absent server) in addition to their supervisory functions. The law, however, allows a manager to accept direct tips from customers, but not to participate in the shared pool with other employees. The tips must be directly attributable to his/her customer service.

Although Opinion Letters do not have the force of law, they offer a strong indication of DOL’s interpretation for enforcement purposes and are highly persuasive with the courts.

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