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The United States Department of Labor’s Wage and Hour Division (DOL) recently issued two Fair Labor Standards Act (FLSA) opinion letters that are worth a look for employers addressing tip pool or lunch break questions.

Meal Periods Shortened by Travel Time to Break Areas May Still Be Non-Compensable, But Minutes Matter

In , the DOL addressed whether an uncompensated 60-minute lunch break, during which employees spend up to 14 minutes just getting to the designated break area, constitutes a “bona fide” meal period. The workplace in question was a detention facility that prohibited bringing food beyond a certain facility; after walking time to get there, employees had between 46 and 54 minutes for the meal break. The DOL found that this remaining period was still “bona fide,” because employees were relieved from duties long enough to use the break to eat a meal. (Indeed, the DOL noted the travel-free break exceeded the 30 minutes typically recognized as a bona fide meal period.)

That said, the DOL recognized that “if a meal period of facially sufficient duration is significantly reduced through travel time, frequent or lengthy interruptions, or restrictions, then that meal period or portions of it may be compensable.” For example, the DOL contrasted the ~45-minute break situation raised in the opinion letter to a Fifth Circuit Court of Appeals case involving a 30-minute break that was effectively reduced to 18 minutes after 12 minutes of travel time, which presented a jury question as to whether the shortened break should have been considered compensable. Thus, employers whose facilities require travel to reach break areas would be wise to consider how much of the meal period gets eaten up by the journey and ensure sufficient break time remains.

The DOL further noted that its opinion did not address the employer’s compliance with its collective bargaining agreement, which called for a 60-minute meal break.

Managers or Supervisors Who Meet the FLSA Executive Duties Test Cannot Share in Tip Pools, Even If They Occasionally Perform Tipped Work Themselves or Assist Others’ Tipped Work

In ,the DOL addressed whether the FLSA permits a restaurant’s shift supervisor — who sometimes doubled as the bartender — could participate in the employer’s “tip pool.” The tip pool required servers to share tips with bartenders, hosts, and bussers, based on percentages of sales. The shift supervisor periodically worked bartending shifts and often assisted hosts and bussers, all while also performing managerial tasks, and sought the DOL’s opinion on whether they could retain tips from the pool under these circumstances.

The DOL answered “no” if the shift supervisor satisfied the FLSA’s executive duties test. Supervisors and managers who meet the FLSA’s executive duties test cannot receive tips from other employees even while working as a bartender or assisting others performing tipped work. (The DOL recognized the shift supervisor, while bartending, could retain tips received directly from customers for the supervisor’s own direct, exclusive service at the bar.)

Employers with shift supervisors — particularly those classified as “exempt” for purposes of overtime under the FLSA’s executive exemption (suggesting they may meet the executive duties test for purposes of being a “manager” ineligible for tip pools) — should ensure these positions are not improperly sharing in tip pools even though they may support tipped work.