Written by Peter, Clouse From Squire Patton Boggs on Oct 1, 2025
As part of the U.S. Department of Labor’s opinion letter program, the Department’s Wage and Hour Division recently issued four opinion letters aimed at bringing clarity, uniformity, and transparency to the application of federal labor standards.
These four opinion letters, addressing the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), represent the Department’s official written interpretations of how these statutes apply in real-world workplace settings. While not binding on courts, the letters provide persuasive guidance regarding the agency’s position on enforcement of these statutes.
The first letter, FLSA2025-03, examined Section 3(m) of the FLSA, which authorizes an employer to apply a tip credit toward its minimum wage obligations for tipped employees and to require employees’ participation in a tip pool, so long as the pool is limited to employees who “customarily and regularly receive tips.” The question before the Department: whether a seafood restaurant could include “front-of-house” oyster shuckers in the restaurant’s tip pool with its servers. Answering in the affirmative, the Department explained that although the oyster shuckers do not receive tips directly from customers, they may still be considered employees who customarily and regularly receive tips because they have sufficient interactions with customers (e.g., they share and detail oyster offerings to customers, make recommendations, and field questions about different options).
Next, the Department detailed in FLSA2025-04 that “emergency pay” provided to firefighters and other city employees must be included in the regular rate of pay when calculating overtime premiums, as none of the FLSA’s Section 7 exclusions applied.
The third letter, FLSA2025-05, explored the joint employer doctrine under the FLSA in connection with a hostess who worked at both a restaurant and a members-only club operating in the same hotel and sharing ownership, management, and operations. The Department explained that, although separately incorporated, the arrangement between the restaurant and the members club created a “horizontal” joint employer relationship for the businesses’ shared employees. As a result, the hostess’s hours worked each workweek at both the restaurant and the members club must be combined to (1) ensure she receives at least the FLSA minimum wage; and (2) determine her entitlement to overtime pay. Importantly, the letter clarified that if this calculation revealed wages owed under the FLSA, both the restaurant and the members club would be jointly and severally liable for payment of those wages.
The final letter, FMLA2025-02-A, addresses how employers should calculate the number of hours of FMLA leave available to employees who are not scheduled to work the same amount of hours each week. Under the FMLA, eligible employees generally may take up to 12 “workweeks” of leave per year. For eligible employees who work a 40-hour workweek, that equals 480 hours of FMLA leave per year (40 hours per workweek multiplied by 12 workweeks). At issue in the opinion letter, however, were correctional officers who worked a fixed “Pitman Schedule” requiring 84 hours of work every two weeks (typically 60 hours one week followed by 24 hours the next week). The Department determined that these correctional officers are entitled to 504 hours of FMLA leave, explaining that the length of 12 “workweeks” must reflect their actual work schedule; under the Pitman Schedule, this equated to 504 hours.
