On June 27, 2017, the U.S. Department of Labor (DOL) announced that it will reinstate the issuance of Wage and Hour Division (WHD) opinion letters as one of its methods for providing guidance to employers and employees on federal wage and hour laws.
An opinion letter is an official, written opinion by the WHD addressing how a particular law applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion. The letters were a division practice for more than 70 years until 2010 when the DOL/WHD ceased issuing them in favor of providing general guidance in what the agency called “Administrator’s Interpretations.” Opinion letters serve a valuable compliance function in that they are responses directed at fact-specific inquiries posed by a requester. This positive step to reinstitute the issuance of opinion letters will assist employees and employers better understand their rights and responsibilities, respectively, under the Fair Labor Standards Act (FLSA) and the Davis-Bacon Act, as well as other statutes for which the DOL/WHD has issued interpretations. More importantly, these opinion letters can constitute administrative rulings or interpretations that employers can cite as litigation defenses, as provided in section 10 of the Portal-to-Portal Act amendments to the FLSA. Although the issuance of new opinion letters ended seven years ago, the DOL/WHD has continued to maintain opinion letters that were issued after 2000 on its website. These letters continue to serve as a source of guidance for employers, employees, attorneys, and the courts.
“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” U.S. Labor Secretary Alexander Acosta stated in a news release. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”
Secretary Acosta’s announcement that the WHD will be reinstating the practice of issuing opinion letters is not surprising, based on prior comments he has made. Secretary Acosta also recently withdrew two of the general guidance documents that were issued during the Obama administration. Those two guidance documents addressed the issues of joint employment and independent contractors.
The WHD has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. In the news release, the DOL states that the WHD will exercise discretion in determining which requests for opinion letters will be responded to and the appropriate form of guidance to be issued.
A question still exists as to how quickly the WHD can or will start issuing opinion letters in response to requests from the public, as the White House has not yet nominated a new WHD Administrator. The Administrator heads the WHD, and the position has been vacant since President Trump’s election. After being selected by the president, the nominee for WHD Administrator will need to be approved by the Senate.