The U.S. Department of Labor Wage and Hour Division (WHD) issued three opinion letters of interest to employers.  Although opinion letters are not the force of law, they do provide guidance as how WHD will review situations that arise. Two were more pertinent to ASE employers:

• FLSA2026-11: Whether an uncompensated 60-minute lunch break, during which employees spend six to 14 minutes walking to and from the employer’s designated break area, constitutes a bona fide meal period.
• FLSA2026-12: Whether FLSA-exempt employees of a nonprofit organization may volunteer, outside of their normal work hours, to perform services for their employing organization.

The third opinion letter was for FLSA2026-13: Whether the FLSA allows a restaurant supervisor who also works as a bartender to keep a portion of other employees’ tips and the extent to which he may participate in a tip pool.

With respect to FLSA2026-11, the letter writer provides the following facts:

They are employed as a security therapy aide (STA) at a detention facility where employees “are prohibited from bringing food beyond the Entry building[.]” They state that, according to your CBA, STAs are entitled to a 60-minute unpaid meal period each workday.  However, the agreement does not specify, and there is no separate written policy as to, when said meal breaks must begin or end.  According to your request, employer policy prohibits STAs from eating at their work area; rather, employees must walk three to seven minutes to a designated break area to access and eat their lunch.  STAs then spend an equal amount of time returning to their work area, resulting in 46 to 54 minutes in the designated break area.  They believe that under your CBA employees should receive the full 60-minute lunch break in the designated break area, not including time spent walking to and from the break area.

First, WHD reviewed the duration of the meal period to determine whether it is bona fide and compensable.  According to WHD and case law, typically, “30 minutes or more is long enough for a bona fide meal period.”  However, when the travel to the meal takes a period of time away from the lunch break, it may be compensable.  WHD cited the  Naylor v. Securiguard, Inc. 801 F.3d 501 (5th Cir. 2015) case in which security guards were required to eat at a specific location on base which took up to 12 minutes of their 30-minute meal break to travel to and from.  The Fifth Circuit concluded that travel time of “no more than a couple of minutes” to the break area did not render the meal break compensable, but that employer-mandated travel that took 12 minutes could allow a jury to find that the remaining 18 minutes was not a bona fide meal period, and that the district court could also consider on remand whether the travel time portion of the break was compensable.

The WHD then reviewed the facts provided and concluded that the time set of one hour less the trave of approximately up to 28 minutes was still sufficient for an uninterrupted period during which they are relieved from duty for the purpose of eating or engaging in personal activities.

In the second opinion letter, it answered the question of whether employees may volunteer for organizations for which they work. The opinion arose from a nonprofit organization that breeds, raises, and trains service dogs. The organization wanted to know whether certain employees could volunteer outside normal working hours to provide in-home juvenile canine socialization services.

The WHD concluded that an employee may volunteer for their nonprofit employer when the employee: offers the services freely and without pressure or coercion, direct or implied; has no expectation of compensation for the volunteer services; and performs services that are not the same as, or similar to, the work the employee is employed to perform. 

However, the WHD takes the position that a nonprofit employee cannot serve as both a paid employee and an unpaid volunteer while performing the same or similar services for the same employer. Where an employee volunteers to perform the same type of work the employee is hired to perform, the WHD views that volunteer work as an indivisible part of the employment relationship and, therefore, it may constitute hours worked under the FLSA. Nor can an employee agree to waive their rights to compensation under the guise of volunteering. 

Although the letters are guidance, it does give HR notice about how WHD will enforce the FLSA.  HR should periodically review the WHD opinion letters or provide facts through legal counsel for one to be issued.  Opinion letters are found at Request an Opinion Letter | U.S. Department of Labor

Source: Littler 9/15/26