Department of Labor Plans to Revive Opinion Letters
Author: David B. Weisenfeld, XpertHR Legal Editor
July 5, 2017
The Department of Labor (DOL) has announced it plans to return to issuing opinion letters in response to employers' questions, a practice it had stopped in 2010 under the Obama administration. The action allows the DOL's Wage and Hour Division, which administers the Fair Labor Standards Act (FLSA) and other statutes, to again use opinion letters to provide guidance to covered employers and employees.
In a statement, US Secretary of Labor Alexander Acosta explained that reinstating opinion letters will benefit employers and provide them with a means to develop a clearer understanding of the FLSA and other laws. "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."
The Wage and Hour Division has established a webpage where the public can see if existing agency guidance already addresses its questions or submit a request for an opinion letter.
North Carolina employment attorney Robin Shea, a partner with Constangy, Brooks, Smith & Prophete, explained that an employer might want to know whether it has properly classified employees as "exempt" under the FLSA in a particular job category, and said these letters provide helpful preventive advice.
"An opinion letter is obviously very helpful to the entity requesting it, but it also frequently is of great help to other entities dealing with the same or similar issues, said Shea. "It also carries persuasive weight with courts involved in wage and hour litigation."
She cautions employers not to expect an immediate impact, saying she does not expect to see a new opinion letter for several months at the earliest. Shea explains that the following steps will still need to be followed:
Despite the brief wait, however, Shea called the eventual return of these opinion letters, "very good news for employers."