DOL Opinion Letters Rise from the Ashes

Opinion Letters written by federal Department of Labor (DOL) officials have served to explain a variety of legal principles and clarify fact-specific situations under the Fair Labor Standards Act (FLSA) since the FLSA became law in 1938.

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Opinion Letters have also provided guidance on a variety of other laws, such as the Family Medical Leave Act (FMLA), Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and the wage garnishment provisions of the Consumer Credit Protection Act (CCPA).

Opinion Letters Replaced by Administrator Interpretations for Several Years

Employers had relied on Opinion Letters for decades, when in 2010 the DOL announced that it would discontinue the use of Opinion Letters as a form of guidance for employers. Instead, according to the Wage and Hour Division (WHD) back in 2010, Administrator Interpretations would be utilized when needed based on the discretion of the Administrator to provide “further clarity regarding the proper interpretation of a statutory or regulatory issue.” Administrator Interpretations were designed to be less fact-specific than Opinion Letters.

Opinion Letters Reinstated

In June 2017, the DOL announced that it would be reinstating the use of Opinion Letters going forward. The DOL stated in its June 27th press release:

“The action allows the department’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees. An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion.”

There are currently seven Administrator Interpretations remaining on the WHD website, featuring a variety of topics including:

  • The application of the FLSA to home care services provided through shared living arrangements;
  • FLSA § 203(o) and the definition of “clothes”;
  • The application of the administrative exemption to employees who perform the job duties of a mortgage loan officer;
  • The application of the FLSA’s “suffer or permit” standard in the identification of employees who are misclassified as independent contractors; and
  • The effect of state laws prohibiting the payment of subminimum wages to workers with disabilities.

The DOL’s 2015 and 2016 informal guidance on joint employment and independent contractors were withdrawn effective June 7, 2017.

Opinion Letters provide valuable guidance to employers. They deal with real-life, day-to-day issues that employers face in the workplace, not simply legal principles that may be difficult to apply to real world situations.

Some argue that Opinion Letters are too fact-specific to be helpful, but if one employer has found the issue important enough to request a formal opinion, then chances are that other employers are dealing with similar issues as well.

Susan PrinceSusan E. Prince, J.D., M.S.L., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Prince has over 15 years of experience as an attorney and writer in the field of human resources and has published numerous articles on a variety of human resources and employment topics, including compensation, benefits, workers’ compensation, discrimination, work/life issues, termination, and military leave. Ms. Prince also served as an expert on several audio conferences discussing the 2004 changes to the federal regulations under the Fair Labor Standards Act. Before starting her career in publishing, Ms. Prince practiced law for several years in the insurance industry and served as president of a retail sales business. Ms. Prince received her law degree from Vermont Law School.

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Questions? Comments? Contact Susan at sprince@blr.com for more information on this topic

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Author: Susan Prince, J.D., M.S.L., Legal Editor