On September 30, 2025, the U.S. Department of Labor\u2019s Wage and Hour Division (WHD) issued opinion letters addressing issues relating to tip pooling, joint employment, and regular rate of pay calculation under the Fair Labor Standards Act (FLSA). \u00a0<\/p>\n
Opinion letters are official written opinions by the WHD explaining how the FLSA and other laws apply to specific workplace situations.\u00a0 Opinion letters are not binding authority but provide persuasive guidance and insight into the agency\u2019s positions and priorities.\u00a0 Although the practice of issuing opinion letters dates back to the 1930s, the level of activity of the program has historically varied depending on the administration in power.\u00a0 In 2017, after a hiatus during the Obama administration, the DOL reinstated the opinion letter program, ultimately publishing 80 opinion letters during the first Trump Administration.\u00a0 The practice fell out of favor again under President Biden.\u00a0 In June, Deputy Secretary of Labor Keith Sonderling announced the relaunch<\/a> and expansion of the DOL\u2019s opinion letter program.\u00a0 The September 30 letters, authored by WHD Acting Administrator James Macy, are the agency\u2019s first batch of opinion letters since the announcement.<\/p>\n \u201cHorizontal\u201d Joint Employment<\/strong><\/p>\n In FLSA 2025-05<\/a>, the WHD considered whether a hostess who worked for a hotel restaurant and a members-only club located on the restaurant\u2019s second floor was jointly employed by both establishments. \u00a0The hostess was employed by the restaurant at the rate of $28.00 per hour and was offered shifts at the members club at the same rate of pay.\u00a0 The hostess would occasionally work at the members club while being \u201cclocked in\u201d at the restaurant.\u00a0 The DOL concluded that the hostess was jointly employed by the restaurant and club, meaning all hours worked at both locations in a single workweek must be combined for FLSA purposes, and both entities would be jointly and severally liable for any unpaid wages under the FLSA.<\/p>\n Although the restaurant and club used different payroll and timekeeping systems and purportedly were separate legal entities, the DOL found the establishments were sufficiently associated with each other with respect to the hostess\u2019s employment to demonstrate a horizontal joint-employment relationship.\u00a0 The DOL noted several indicators of joint employment, including (a) the operational integration of the restaurant and club (including their physical proximity, common kitchen, and similar menus), (b) the seeming coordination of rates of pay and work schedules between the two facilities, and (c) common management support.\u00a0<\/p>\n