Ohio Court of Appeals Stays Entire Litigation Pending Arbitration Despite Clause Carve-Out Exception for Injunctive Relief for Alleged Breaches of Non-Compete and Non-Disclosure Clauses

At the beginning of the month, the Portage County Court of Appeals affirmed a stay pending arbitration of litigation involving alleged breach of non-disclosure and non-competition covenants despite the common carve-out exception for injunctive relief in the parties’ arbitration clause for those types of disputes.  RoviSys Co. v. MRS Instrumentation & Controls, L.L.C., 2026-Ohio-4339.   The Court held that the entire proceeding – both arbitrable and non-arbitrable claims as well as injunctive and non-injunctive relief and even claims against non-signatories – would be referred to arbitration on the grounds that if any of the claim are arbitrable, then all claims must be first referred to arbitration.  Therefore, the entire lawsuit filed by the plaintiff employer against a former employee and his new employer involving breaches of a non-competition and non-disclosure clauses (and other tort claims) was referred to arbitration even though the new employer never signed the arbitration clause and the agreement contained a carve-out for injunctive relief sought to enforce those clauses.   Every employer should review their existing arbitration agreements to determine how to proceed. 

According to the Court’s opinion, the plaintiff employer filed a lawsuit against a former employee and his new employer alleging, among other things, that he violated the non-disclosure and non-competition provisions in his employment agreement both before and after resigning his employment.  It sought injunctive relief and damages against the employee and his new employer and the parties agreed to a 90-day preliminary injunction, after which the defendants obtained counsel and then moved to stay the entire proceeding pending arbitration of the entire dispute prior to filing an answer or engaging in discovery.    The relevant 2004 employment agreement contained a broad arbitration clause, which created an exception: “provided, however, the Company shall be entitled to seek injunctive relief, without resorting to Arbitration, for any breach of Paragraphs 4, 5 or 6 [i.e., the non-compete and non-disclosure provisions].   The new employer obviously had never signed the employment agreement or agreed to arbitrate any dispute with the plaintiff employer.  The court stayed the entire litigation pending arbitration and the plaintiff employer appealed.

Arbitration is a matter of contract.   The Court easily (and properly) rejected the plaintiff employer’s argument that the arbitration clause applied only to claims brought by the employee and not to any claims brought by the employer.  If that had been true, then there would be no need for the carve-out clause at the end of the arbitration clause making an exception for when the employer sought injunctive relief:

 . . .  the plain text of the full clause indicates that the parties agreed to arbitrate any claims that involve [his] employment, except as otherwise specified in the carve-out. This is because the agreement uses the term “any claim or dispute” and contains no limitation as to which party must assert it. As one court has explained, the purpose of this type of carve-out is to enjoin a party “from continuing to allegedly breach the employment agreement until the two parties [can] obtain arbitration.”  . . .  By contrast, if Appellant’s reading were correct, then there would be no need for the carve-out.

Further, the carve-out did not exempt all claims involving breaches of the non-compete and non-disclosure – it only carved out one particular remedy:  injunctive relief.  Ohio courts have described “injunctive relief” as “a remedy, not a cause of action.”  Therefore, “Appellant is permitted to seek the remedy of injunctive relief in court for [his] alleged breaches of paragraphs 4-6; however, Appellant is not permitted to seek other remedies in that forum.”  If the plaintiff had wanted to exempt any claim it would make involving breaches of those provisions, it should have used the term “action” or “lawsuit” instead of merely exempting “injunctive relief.”

More problematic is that the Court stayed the entire action, not merely the arbitrable claims. “Pursuant to R.C. 2711.02, when an action involves both arbitrable and non arbitrable claims, the entire proceeding must be stayed until the issues that are subject to arbitration are resolved.”

However, it seems questionable whether R.C. §2711.02 commands that result:

(A) As used in this section and section 2711.03 of the Revised Code, "commercial construction contract" means any written contract or agreement for the construction of any improvement to real property, other than an improvement that is used or intended to be used as a single-family, two-family, or three-family detached dwelling house and accessory structures incidental to that use.

(B) If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.

(C) Except as provided in division (D) of this section, an order under division (B) of this section that grants or denies a stay of a trial of any action pending arbitration, including, but not limited to, an order that is based upon a determination of the court that a party has waived arbitration under the arbitration agreement, is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.

(D) If an action is brought under division (B) of this section upon any issue referable to arbitration under an agreement in writing for arbitration that is included in a commercial construction contract, an order under that division that denies a stay of a trial of the action pending arbitration, including, but not limited to, an order that is based upon a determination of the court that a party has waived arbitration under the arbitration agreement, is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.

The Court also rejected the argument that the defendants had waived the arbitration clause by initially agreeing to the 90-day preliminary injunction because they had been unrepresented by counsel, had never filed an answer (i.e., defaulted) and had never engaged in pre-trial discovery.

[Defendants’] only substantive participation in the lawsuit over its four-month duration consisted of consenting to the preliminary injunction while they were unrepresented by counsel. As soon as counsel filed his notice of appearance, however, [Defendants] consistently sought to enforce the arbitration clause. In addition, [Defendants’] execution of the consents was not inconsistent with the arbitration clause. As explained, the arbitration clause expressly permitted [plaintiff employer] to seek injunctive relief regarding [his] alleged breaches of paragraphs 4 and 6 of the agreement. Thus, [the employer] was not prejudiced.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects FLSA and Contract Claims of Overworked Computer Professional

Last week, the Sixth Circuit rejected the overtime compensation challenge of an exempt computer professional under the Fair Labor Standards Act and contract law.  Bennink v. Cincinnati Bell Telephone Company LLC, No. 26-3150 (6^th Cir. 10/29/26).   The Court found that there was sufficient evidence that he was an exempt computer professional and did not examine whether he satisfied the administrative or executive exemptions.  The Court rejected the plaintiff’s contention that the exemption required any formal training or degree because “the statute’s lack of an explicit educational requirement “reflects the reality that someone [could] learn[] such skills through work experience or self study.”  More interestingly, the Court found that the letter offering him employment at $75/hour was not a binding contract because the letter explicitly said it was not a contract.  Therefore, the employer’s failure to pay $75/hour and to instead pay him a $3,000 weekly salary was not a breach of contract even though he regularly worked more than 15 hours/day. “The mere mention of a rate of pay similar to his previous rate as a contractor, without any assurances as to whether that rate was to be on an hourly or salaried basis, is insufficient to show that the parties agreed to a $75 hourly rate.”  Less controversally, the Court also found that the plaintiff had implicitly agreed to the terms of his actual compensation by accepting $3K/week for almost seven years without complaint.  Such a course of conduct during at-will employment constitutes agreement to the terms of employment because under Ohio law, the terms and conditions of at-will employment can be changed prospectively at any time.

According to the Court’s opinion, the plaintiff had been a long time engineer working with the employer developing its interactive voice response technology (IVR) system, first with outside contractors and then, starting in 2016 as a W-2 employee, to be paid $75/hour but treated as an exempt computer professional.  On his resume, he “described his position  . . .  as an “Ops/IT Solutions & Services Engineer” and  . . .  that he “design[ed], implement[ed], and maintain[ed] IT solutions and services, such as IVR call flow designs, dial plans, and various end user support applications.”  . . .  He highlighted that he “leveraged in depth knowledge of contact center technologies, platforms, and tools,” and accomplished “successful contact center infrastructure migrations (both on premise and Cloud based solutions).”  After regularly working 18 hour days and not receiving more assistance despite his complaints, he resigned in 2023.  He later filed suit because he claimed that he was not paid $75/hour, but only $3000/week and claimed that this both violated the FLSA and breached his contact of employment. 

The FLSA exempts from the statute’s overtime protections “any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker” with one of the specified “primary dut[ies].” 29 U.S.C. § 213(a)(17). In particular, 29 U.S.C. § 213(a)(17)(B) exempts employees who have the primary duty of “design, development, documentation, analysis, creation, testing, or modification of computer systems or programs . . . based on and related to user or system design specifications.”1 Computer employees “who [are] compensated on an hourly basis” must be “compensated at a rate of not less than $27.63 an hour” to be exempt. 29 U.S.C. § 213(a)(17). Although the parties dispute whether [the plaintiff] was paid on an hourly or salary basis, both agree he was paid at a rate well over the statutorily required hourly rate of $27.63. So we focus on the responsibilities targeted by the statute.

 .. . .

First, 29 U.S.C. § 213(a)(17)(B) requires that the relevant responsibilities—“design, development, documentation, analysis, creation, testing, or modification”—concern “computer systems or programs.” Here, much of Bennink’s work revolved around Cincinnati Bell’s IVR system. Although the statute does not define “computer system or program[],” 29 U.S.C. § 213; 29 C.F.R. § 541.400, we have little trouble concluding that an IVR system is one. An IVR system is complex and technical. It automatically routes a user’s call based on a programmed menu, pulling in information from various databases and other systems. In fact, even while disputing that his role involved working on a computer system, Bennink himself describes “the various computer systems that contributed to IVR’s functionality” and how part of his role was working with others to ensure the requested IVR updates “were even feasible within the computer systems.”  . . . . This description corroborates our assessment of the IVR system. After all, a program made up of smaller computer systems is still a computer system.

Many of [the plaintiff’s] responsibilities regarding the IVR system fell within several of the duties described in 29 U.S.C. § 213(a)(17)(B), namely, “documentation,” “design,” and “development.” For one, [he] extensively documented the IVR system, mapping out where and how the system routed callers based on their needs. He worked in collaboration with others in IT, updating the map to reflect changes made by programmers or giving the programmers direction on what should be updated to make the system more effective. Although [he] insists that this responsibility was little more than creating “complicated flowcharts,”  . . . , his documentation was essential to helping others in the company understand how the current system worked, and therefore how it could be successfully changed in the future. . . .

[The plaintiff’s] documentation responsibilities also bled over into “design” and “development.” 29 U.S.C. § 213(a)(17)(B). In a system like IVR, which exists solely to route customers to the relevant assistance, “the design is the flow.”  . . . . [He] met with the team members who would be using or supporting the IVR, taking their feedback and determining how the system should be structured to meet user needs while complying with technical demands. By gathering these inputs and proposing the flow of the IVR, Bennink was designing and developing the system.

 . . .

To be sure, not all of Bennink’s work fell cleanly within the exemption. Bennink relied on other team members to carry out the actual programming of the system and ensure that the necessary data would be pulled in accordance with the goals laid out by his document. He also often acted as a project manager, coordinating across teams, negotiating deadlines and budgetary requirements, or preparing for the launch of a new IT solution. But it is not surprising that a job like Bennink’s was multi-dimensional. On this record, Bennink’s responsibilities concerning documentation, design, and development of the IVR system were the “main” or “most important” part of his job, making them his “primary duty.” 29 C.F.R. § 541.700(a). Although the parties do not present an exact breakdown of how much time Bennink spent on his various responsibilities, the evidence demonstrates that Bennink’s IVR related responsibilities were key to his role at Cincinnati Bell. Bennink himself believed he was brought on as an employee at Cincinnati Bell in large part because of his IVR expertise. These skills later made him an integral part of the efforts to migrate and update Hawaii Telecom’s IVR system, a task he admitted was sensitive, complex, and time-consuming. Because these responsibilities were so central to Bennink’s initial hiring and his workload, we conclude that they were his primary duty.

The Court also rejected the breach of contract claim based on his offer letter’s promise to pay him $75/hour when the employer “only” paid him $3,000/week despite him regularly working more than 15 hours per day.  As a contractor, he had been paid $75/hour for all hours worked, but he was not paid more when he worked more than 40 hours in a week after he became a W-2 employee.   To his detriment, despite his complaints about his working hours, he never complained about his compensation until he filed the lawsuit.

Even drawing all inferences in [the plaintiff’s] favor, [he] cannot show that his offer letter created a valid contract between him and [the defendant employer]. Two facts are insurmountable. First, [his] offer letter, which he signed, stated twice that it “does not constitute an employment contract.” . . . . Second, in his deposition, [he] himself stated that he “d[idn’t] think there was a meeting of the minds” when the parties exchanged the offer letter. . . . . . To find that the offer letter itself constituted a valid contract here, where one party clearly stated that it did not intend to enter into a contract and the other party admits to understanding that lack of intent, would require us to ignore the fundamentals of contract law.

It is true that despite the lack of an initial contract, [the plaintiff] went on to work as an at-will employee for [the defendant employer] for several years. And Ohio recognizes that at-will employment is generally “contractual in nature.”  . . . But even if at-will employment necessarily creates some sort of contractual relationship, enforcing any contract provision requires sufficiently definite terms.  . . .  Ohio courts allow the trier of fact to consider the facts and circumstances surrounding at-will employment, including the custom and course of dealing between parties, to determine whether “implied or express contractual provisions . . . alter[ed] the terms” of employment.  . . . So the ultimate question is whether [he] can demonstrate that a $75 hourly rate (including hours beyond forty per week) was a term the parties agreed upon.

In contrast to cases where employees have alleged that specific conversations or company documents provided guarantees about their employment,  . . .  [the plaintiff] argues only that he was being paid $75 per hour as a contractor before joining [the defendant employer as an employee]. So, he believed the offer was intended to be under “precisely the same terms.”  . . . . But the offer letter containing the $75 per hour rate did not say whether this would be on an hourly or salary basis, nor did it provide any details regarding overtime pay or hours to be worked per week. And [he] does not provide any evidence of other, later assurances made by [the employer] on such matters. The mere mention of a rate of pay similar to his previous rate as a contractor, without any assurances as to whether that rate was to be on an hourly or salaried basis, is insufficient to show that the parties agreed to a $75 hourly rate.

And regardless of the parties’ initial understanding regarding Bennink’s compensation, in at-will employment relationships, either party “may propose to change the terms of their employment . . . at any time.”  . . .  Here, [the plaintiff] was paid $6,000 per pay period, or $3,000 per week (the equivalent of $75 x forty hours), no matter how many hours he worked since October 2016. Although [he] argued below that he did not assent to any change in the terms, this argument is unavailing. [He] reviewed his paychecks, which stated he was being paid “$3,000 weekly.”  . . . [He], moreover, knew he was unable to log more than 40 hours per week and that he was categorized as an “exempt” employee. For its part, management knew that [he] was working many hours, partly because of [his] own complaints about his schedule—complaints where he did not mention any issues concerning his compensation. So even if [he] and [the employer] had initially agreed to a $75 hourly rate for all hours worked, we conclude on these facts that [he] agreed to continued employment on a salary basis.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Police Chief Loses Qualified Immunity Argument After Having HR Consultant Arrested on Misdemeanor Charges Allegedly to Retaliate or Intimidate Her

Every now and then a case shows up that even I – in my jaded old age – find jaw dropping.  This morning was one of those times.  A local HR Consultant was arrested and incarcerated for 36 hours in connection with an internal investigation in northeast Ohio.  Needless to say, the Police Chief (who was a subject of that investigation and arranged for her arrest and incarceration) was promptly placed on leave and then fired.  After she subsequently brought suit against him and the Township for, among other things, abuse of process, he claimed qualified immunity because he had probable cause to have her arrested for a misdemeanor charge.  The Court noted that he had confused malicious prosecution (where there was no probable cause) with abuse of process.  “The premise of an abuse of process claim is that a process has been abused, not that it was illegal to invoke the process by proceeding without probable cause.”  Further, there was sufficient evidence that he sought to silence the Consultant to preserve his employment, not merely to see her justly prosecuted for a misdemeanor offense.  Therefore, evidence of his malicious purpose in having her arrested was sufficient to justify denial of qualified immunity.  McDowell v. Pomesky, No. 26-3027 (6^th Cir. Oct. 26, 2026).

According to the Court’s opinion, the Consultant was engaged by the Township to audit its human resources practices and concerns with the Police Chief.  In the course of her audit, she discovered a number of complaints against the Chief.  She also discovered that he was monitoring which employees she spoke with (possibly to intimidate them) and had opened an investigation (in retaliation) against the person who told her about his monitoring.  She provided a draft report to the Township about the issues with the Chief and became concerned that he would retaliate against her when he not-so-subtly -informed her that he knew her home address. She responded with a false bluff that she was aware someone had looked her up on LEADS, and he promptly investigated whether that LEADS report had been generated from the Township department.  Several days later, he convinced a local prosecutor that she had engaged in misdemeanor falsification and obstruction of official business and obtained an arrest warrant from a judge.   Typically, misdemeanor arrests are only made in that County and  misdemeanors are only subject to a summons, not an arrest.  (In fact, no misdemeanor warrants had been issued or arrests occurred outside the County in the Chief’s memory or career).  However, the Chief arranged for the Consultant to be arrested in Franklin County, where she was held for 36 hours.   At no time had the Township ever arranged for someone to be arrested for a misdemeanor more than 4 hours away, like the Consultant.

After the defendants moved for summary judgment, the District Court agreed that the Consultant had sufficient evidence to show that the Chief had engaged in abuse of process – i.e., “whether [the Chief] perverted the process for an ulterior purpose.”  It also found qualified “immunity under Ohio law does not extend to government employees who act “with malicious purpose, in bad faith, or in a wanton or reckless manner.” The Chief appealed only the denial of qualified immunity.

In Ohio, municipal employees enjoy a “presumption of immunity.”  . . .  But that immunity does not extend to employees whose “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code Ann. § 2744.03(A)(6)(b). [The Consultant] alleges both malice and bath faith. For malice, an employee must act with “the willful and intentional design to do injury or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified.”  . . .  An employee acts in “bad faith” when they have “dishonest purpose,” engage in “conscious wrongdoing,” or breach a “known duty through some ulterior motive or ill will.”  . . .  The question of “[w]hether a government employee acted with the intent necessary to overcome the presumption of immunity is typically a jury question.”  . . .

 Here, [the Chief] argues that he is entitled to statutory immunity because he had a reasonable justification for investigating, charging, and arresting [the Consultant] and because his actions were “authorized” under Ohio law.  . . .  But viewing the evidence in the light most favorable to [the Consultant], a reasonable jury could conclude that [his] actions nonetheless evinced malice or bad faith.  Consider even just a few parts of the record that raise a material question as to whether [he] acted with an intent to harm [her] or with a dishonest purpose. [The Consultant], for example, presented evidence that [his] decision to seek and enforce an arrest warrant was contrary to the police department’s policy for misdemeanor offenses. Various officers in the department—including [him]—could not identify a single instance in  their entire careers where misdemeanor charges had been handled in a similar manner. A reasonable jury could find that [he] deviated from the department’s arrest policy for the dishonest purpose of hampering or halting [her] investigation into him by incarcerating her. (italics added for emphasis).

[The Chief] contends that he is entitled to immunity because his decision to arrest [the Consultant]  was supported by probable cause; he emphasizes that a prosecutor brought the charges and a judge signed off on the arrest warrant.  . . . . But [he] does not cite authority for the proposition that the presence of probable cause is, by itself, enough to guarantee immunity. Nor could he: The first element of a claim for abuse of process is “that a legal proceeding has been set in motion in proper form and with probable cause.”  . . . The premise of an abuse of process claim is that a process has been abused, not that it was illegal to invoke the process by proceeding without probable cause. The latter sounds in malicious prosecution, a distinct claim that [he] improperly conflates with abuse of process.  . . .  So if probable cause could confer statutory immunity, as [he] asserts, government employees would have immunity against all properly pleaded claims of abuse of process and could pursue malicious and bad faith actions with impunity.

The Court also rejected the Chief’s attempt to rely on an Ohio Supreme Court decision’s footnote (which is always dicta) because that decision concerned the merits of an abuse of process claim, and not the issue of qualified immunity, which is governed by statute.

Next, [the Chief] contends that because his actions were “authorized,” he is entitled to statutory immunity. This argument too is unavailing because it conflates two different legal questions. His argument rests on a footnote in Yaklevich, an Ohio Supreme Court case. Yaklevich explains the second element of an abuse of process claim, which requires that “the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed.” Id. The footnote states: “Therefore, ‘there is no liability [for abuse of process] where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.’” Id. at 118 n.2 (quoting Prosser & Keeton on the Law of Torts 898 (W. Page Keeton et al. eds., 5th ed.1984)). [The Chief] reasons that because his conduct falls within that footnote’s safe harbor, he did not act with the malice or bad faith required to overcome immunity under § 2744.03(A)(6)(b).

The problem for [the Chief] is that Yaklevich addresses the merits (i.e., what makes the misuse of process tortious), whereas § 2744.03(A)(6)(b) addresses the official’s culpable state of mind for immunity purposes. Whether [the Chief] “perverted” the criminal process is therefore not necessarily coextensive with whether he acted with malicious purpose or in bad faith in pursuing them. Indeed, as Yaklevich’s footnote itself suggests, a defendant can carry a legal process to its authorized conclusion but still have a dishonest purpose. See e.g., Buehner v. City of Cleveland, 788 F. Supp. 3d 827, 914, 921-22 (N.D. Ohio 2025) (holding that allegations of fabricated evidence rose to the level of bad faith or malice necessary to defeat statutory immunity but failed to establish abuse of process absent an ulterior purpose beyond securing a conviction). And here, a reasonable jury could find that [the Chief] exercised otherwise lawful discretion for the dishonest purpose of protecting his job by discrediting and silencing [the Consultant].

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Addresses Volunteer Work by Non-Profit Exempt Employees

Last month, the federal Department of Labor issued an Opinion Letter 2026-12 addressing when non-profit employees can volunteer for their employer without additional compensation.  The DOL has long taken the position that employees may not volunteer without expectation of compensation to perform duties that are the same or similar to their regular compensable work.  In addition, if an exempt employee volunteers similar work, the employer must be careful that the employee’s primary duty remains exempt work or those employees would be entitled to additional compensation.   This particular work involved socializing puppies at home to become service animals.  The duties of office workers and veterinarians were dissimilar enough from the tasks of socializing puppies at home and, thus, could be voluntary.  However, the compensable duties of exempt dog trainers were too similar to be volunteer work.  Further analysis would be required to determine whether raising puppies changed the primary duty of their exempt position.  “If the employee remains exempt under the applicable duty and salary tests, the employee’s salary could serve as compensation for any hours spent raising puppies at home, and no additional compensation would be required.”  This is because, “an employee who is exempt from the minimum wage and overtime requirements under section 13(a)(1) may perform additional juvenile canine socialization work without additional compensation if the employee’s primary duty remains the performance of exempt work and the employee continues to satisfy the salary requirements for the exemption.”

The DOL has long applied by analogy FLSA regulations applying to government work to non-profit agencies.

[A]n employment relationship does not exist when a public sector [i.e., government] employee volunteers to perform services to the employing public agency, so long as the individual receives no compensation to perform the volunteer services,3 and such services are not the same type of services for which the individual is employed to perform for the public agency. 29 U.S.C. § 203(e)(4)(A). In addition, the Division’s regulations clarify that individuals are volunteers “only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.” 29 C.F.R. § 553.101(c). . . .

Although the FLSA does not include a similar express provision for private, nonprofit employers, the Division has consistently applied the same requirements to employees of religious, charitable, or nonprofit organizations who volunteer their services to their employing organization for civic, charitable, or humanitarian reasons. . . .

Accordingly, an employee of a nonprofit organization may, freely and without coercion from the employer or its agents, volunteer to perform work that is neither the same nor of similar type as the work that the employee is employed to perform. Put another way, a nonprofit employee cannot be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer  … . .When a nonprofit employee volunteers to do the same type of work that the employee is employed to perform, the Division has long considered that volunteer work an indivisible part of the employment relationship for FLSA purposes, and, as such, it may constitute hours worked.  . . . Additionally, employees cannot agree, or be required to “agree,” to waive their rights to compensation under the FLSA under the guise of volunteering.

If an exempt employee volunteers to perform work that is the same or similar to his or her regular duties, the employer need not necessarily pay extra salary or compensation unless the amount of so-called volunteer work involves non-exempt aspects of the employee’s job and the employee’s primary duties are no longer exempt duties.

An employee’s exemption status can become relevant, however, if the “volunteer” work does not satisfy the conditions for volunteering required by the Act and explained in the Division’s regulations, including, for example, if the volunteer duties are of the same or similar type as those the employee is employed to perform, and thus are part of the employment relationship. In those circumstances, for a non-exempt employee, the employer must pay for all combined hours worked, including any “volunteer” hours, pursuant to the Act.

In analyzing job duties in comparison to the tasks of raising puppies at home, the DOL concluded that exempt veterinarian and office workers could volunteer to raise puppies, but exempt dog trainers could not volunteer without further analysis of how the non-exempt work of raising puppies affected their primary duty test.

Based on a general understanding of the work that veterinarians typically perform, we assume for the purposes of this letter that the veterinarians’ duties involve providing medical care to the canines, such as diagnosing and treating sick or injured dogs, and do not include providing non medical care to, training, or socializing juvenile canines. Likewise, we assume for the purposes of this letter that the directors’ duties involve supervising employees and do not include directly caring for, training, socializing, or otherwise interacting with the juvenile canines. As such, the veterinarians’ and directors’ duties would be sufficiently different from the routine care, socialization, and early training involved in raising juvenile canines, and veterinarians and directors could volunteer to provide these services in their homes . . .  

The result is different for trainers. As discussed above, juvenile canine socialization includes not only routine care but also training. If the nonprofit employs trainers to provide specialized training for canines, as your letter implies, or to care for or socialize the canines, those duties would likely be the same or sufficiently similar to the services performed by juvenile canine caretakers, such that the trainers may not volunteer for your organization to care for or train canines at home.  . . .  This is true regardless whether the employee also performs other work, including exempt work, or whether the employee’s primary duty for purposes of the section 13(a)(1) exemption is caring for or training canines.

For veterinarians and directors whose job duties differ sufficiently from those involved in juvenile canine socialization, the time the employee spends as a volunteer juvenile canine caretaker would not be part of the employee’s employment relationship with your organization for FLSA purposes. In contrast, if the services you employ the employee to perform involve the same or similar type of activities as those involved in juvenile canine socialization, the volunteer hours are part of the employment relationship and must be counted as hours worked for FLSA purposes as long as they qualify as compensable worktime under the FLSA.. . .

Because the volunteer work (which is sufficiently dissimilar from regular job duties) is not considered to be work under the FLSA, no further analysis is required to determine whether the employee’s exempt status is affected.  However, for the exempt dog trainers, further analysis would be required to determine whether raising puppies at home would change the primary duty of their position and affect their exempt status. “If the employee remains exempt under the applicable duty and salary tests, the employee’s salary could serve as compensation for any hours spent raising puppies at home, and no additional compensation would be required.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Says 60 Minute Break and Walking Time is Not Compensable When Employee is Completely Relieved from Job Duties

 Last month, the federal Department of Labor issued an Opinion Letter 2026-11 finding that a 60-minute break was non-compensable and the employee was not entitled to be paid for time spent walking from her work station to the employee break room if she was completely relieved from duties during that time even if she was prohibited from eating at her work station.  The FLSA does not require employers to provide rest breaks to adult employees. Breaks of up to 20 minutes are generally for the convenience of the employer and must be compensated.  However, meal breaks over thirty minutes – such as this one – are clearly non-compensable. 

[The FLSA]  generally does not require employers to provide employees rest breaks or meal periods.  . . .  And the central issue in most meal break cases is whether the employees were, in fact, relieved from their duties or, instead, were required to “work” for purposes of the Act during their meal period.  . . .  If employees are not relieved from duty during the meal period, then the time is ordinarily considered hours worked and compensable.  . . . The [W&H] Division looks to the duration of the meal period to determine whether it is bona fide and compensable. Typically, “30 minutes or more is long enough for a bona fide meal period.”  . . .  In contrast, short rest breaks of up to 20 minutes in length are considered compensable as “[t]hey promote the efficiency of the employee[.]”  . . .  But these are not rigid, formal requirements. Indeed, meal periods of less than 30 minutes may be considered bona fide and not compensable under certain circumstances— for instance if employees have sufficient time to eat a regular meal or there is an agreement between employer and employee for a period of less than 30 minutes for a meal period.  . . .  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.  . . .

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Based on the factual representations in your letter, the Division concludes that your employer provides a bona fide meal period under the Act and 29 C.F.R. § 785.19 because you are relieved from your work duties during the break and the period is long enough for you to use it for the  purpose of eating a meal, even accounting for the travel time required by your employer. There is no indication that your employer requires employees to work while they are eating and it appears that employees are relieved from any work responsibilities during that time. Further, the 46 to 54 minutes available for employees after arriving at the break area is more than enough for the purpose of eating a meal. Indeed, this amount of time is much longer than the 30 minutes that is ordinarily sufficient for a bona fide meal period. This analysis focuses on relief from work and the sufficiency of time for the meal after mandatory travel time; the length of travel time is not itself determinative. As such, employees may use the meal period “for the purpose[] of eating regular meals” or for other personal matters . . .

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You also assert that travel time to and from the break area should be compensable because “[e]mployees are not fully relieved of their duties for the purpose of eating a meal until they can access their food in the designated break area[.]” The Division—and most courts—reject the “complete relief from duty” standard and instead evaluate the compensability of meal periods under the predominant benefit test, although a few outliers continue to apply the former formulation. When employees need just a few minutes of travel time to access a break room or other location where they can eat their meal, that time is generally not compensable.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.