The U.S. Department of Labor issued two opinion letters on September 7 clarifying when employee "volunteer" hours are compensable under the Fair Labor Standards Act and whether exempt managers may share in restaurant tip pools. The letters — FLSA2026-12 on volunteering and FLSA2026-13 on tip sharing — apply to the FLSA, which covers most private employers, and they arrive with a warning for multistate employers: California's wage-and-hour rules diverge from the federal baseline in ways that change the compliance answer.

For HR teams, the guidance touches two everyday people-process decisions: approving after-hours volunteer work by nonprofit staff, and structuring tip-outs in restaurants where managers occasionally tend bar.

What does FLSA2026-12 say about employees volunteering?

The scenario involves a nonprofit that breeds and trains service dogs. Exempt employees — a supervising director, a veterinarian, a trainer — asked whether they could perform uncompensated socialization work with juvenile service dogs after their normal hours. The work was not a job requirement, carried no benefit to the employee, and would not affect regular duties.

The DOL reaffirmed the general rule: volunteer time is not compensable when a person freely gives time, expertise or labor, with no expectation of pay, to a religious, charitable or nonprofit organization. That rule can extend to an organization's own employees — with one boundary. The employee cannot "volunteer" to perform the same type of work for which the employer already employs them.

A veterinarian at the service dog organization therefore cannot volunteer veterinary services to the same organization. A trainer is closer to the line. The DOL noted that a trainer's after-hours socialization work may be sufficiently similar to the trainer's regular duties that the hours are compensable rather than volunteer time.

Exempt or nonexempt status does not determine whether someone qualifies as a volunteer, but it determines what happens if the hours turn out to be compensable. If the trainer's dog-socialization hours count as work, the employer must evaluate whether those hours erode the trainer's exemption.

Where does California law diverge on exemptions?

The federal-state split matters here. Under the FLSA's job duties tests for the administrative, executive and professional exemptions, only the employee's "primary duties" must be exempt — in some circumstances an employee need not spend the majority of the workweek on exempt work. California law requires the opposite: the exempt employee must spend the majority of the workweek performing exempt duties.

That difference creates a concrete risk in the opinion letter's scenario. Because the trainer's additional socialization hours are compensable, they could undo the exemption two ways: by shifting the trainer's "primary duties" under the FLSA, or by pushing the trainer's workweek below the majority-exempt threshold under California law.

The practical instruction from the guidance: any employer allowing its own employees to volunteer should consult legal counsel on whether the hours are compensable and whether they jeopardize a claimed exemption.

Can a moonlighting manager join the tip pool?

FLSA2026-13 addressed a restaurant employee classified as an exempt manager under the FLSA who occasionally works full bartending shifts. Servers at the restaurant "tip out" bartenders, hosts and bussers. The question: can the manager join the pool on nights behind the bar?

The DOL's answer was no. Even though the manager performs tip-eligible work when tending bar, exempt-manager status bars participation in the tip pooling arrangement. There is one carve-out: the manager may keep tips received directly from customers while bartending.

How do California's tip rules differ?

Both federal and California law prohibit "managers" from sharing in tip pools, but they define the term differently. Under the FLSA, a "manager" for tip-sharing purposes is a worker classified as exempt under the executive exemption. California broadens the definition to any "agent" of the employer with authority to hire or discharge employees, or who supervises, directs or controls employee actions. That can sweep in workers who would not meet the FLSA's executive exemption duties test.

California also raises the exemption stakes for restaurants. An exempt manager in California may lose the exemption if too much time goes to nonexempt work such as bartending or helping hosts and bussers, because the majority of workweek hours must stay on exempt duties.

One further California difference sits outside the opinion letter but shapes restaurant pay math: California prohibits tip credits against minimum wage, while the FLSA permits them. Tipped employees in California must earn minimum wage for every hour actually worked.

A third opinion letter issued the same day, addressing bona fide meal periods, is expected to draw separate guidance — another reason wage-and-hour teams should keep the September 7 letters on their compliance calendars.