DOL publishes 3 new opinion letters — Agency insight helps with wage and hour compliance

On Labor Day, September 7, the U.S. Department of Labor (DOL) issued three new opinion letters that apply the federal Fair Labor Standards Act (FLSA) to these questions:

1. Must employers pay employees for time spent walking to the lunch area?
2. May employees perform additional duties as volunteers?
3. May supervisors keep tips when bartending?

Opinion letters not only answer a detailed question on a particular employment scenario; they also provide wage and hour compliance guidance for other employers. Below is a snapshot of each letter.

1. Pay for time spent walking to lunch

An employer provided a 60-minute lunch break, during which employees spent between 6 and 14 minutes walking to and from the designated break area. An employee wondered if the employer had to pay for the time spent walking to the break area, and whether the lunch break was long enough to be considered “bona fide.”

The DOL said that the employer didn’t have to pay for the time spent walking to the break area, and that typically, 30 minutes or more is long enough for a bona fide meal period under the FLSA. The lunch period was long enough to use it to eat a meal, even accounting for the travel time required. It appeared that employees were relieved from any work responsibilities during that time. The 46 to 54 minutes available for employees after arriving at the break area was more than enough to eat a meal.

2. Employees volunteering

A nonprofit organization had both exempt and nonexempt employees performing some jobs and volunteers performing different tasks. Some employees wanted to do the volunteering tasks in addition to their regular jobs.

The DOL said that employees may freely and without coercion from the employer or its agents, volunteer to do work that’s neither the same nor of a similar type as the work that they’re employed to do. Put another way, an employee can’t be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer.

3. Supervisors keeping tips

A restaurant had a tip pool for bartenders, hosts, and bussers. A supervisor primarily performed management duties, but also periodically bartended. When this employee bartended, they collected a “tip out” from the servers. This employee also often helped the hosts and bussers while also performing managerial tasks and collected a portion of the “tip out” intended for hosts or bussers, as well. The employer asked whether the employee may receive a portion of other employees’ tips through the employer’s “tip out” arrangement when bartending or helping hosts and bussers while also serving as a supervisor.

The DOL said that the FLSA prohibits supervisors from keeping any portion of other employees’ tips, regardless of whether the supervisors also work as bartenders or help other employees. Supervisors may, however, keep any tips they receive directly from customers based on the service the supervisors directly and solely provide.

Key to remember: The DOL provides FLSA insight into 3 detailed situations regarding lunch breaks, employee volunteers, and supervisors dipping into tip pools.