DOL Reinstates Valuable Compliance Tool for Employers

On June 27th the U.S. Department of Labor (DOL) announced that it has reinstated the issuance of Opinion Letters by its Wage & Hour Division and unveiled a new website to guide employers and employees in requesting an Opinion Letter. The agency also redesigned the website housing its Opinion Letters and other sub-regulatory guidance.

DOL stopped issuing Opinion Letters answering questions from the regulated community in 2010, replacing them with the more general “Administrator Interpretations.” Interpretations were intended to set forth a general interpretation of the law and regulations as they related to an entire industry, a category of employees, or to all employees.

An Opinion Letter, in contrast, 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.

DOL issued only 11 Interpretations between 2010 and 2016; and two of those – on independent contracting and joint employment – were withdrawn on June 7, 2017.  Prior to 2010, DOL would often issue dozens of Opinion Letters each year.

Another compliance tool for employers

With the return of Opinion Letters, DOL provides employers with another tool to ensure compliance with the Fair Labor Standards Act and establish a good faith defense against FLSA liability.  Section 10 of the Portal-to-Portal Act provides a complete affirmative defense to all monetary liability if an employer can plead and prove it acted “in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation” of the Administrator of the Wage and Hour Division.  29 U.S.C. § 259; see also 29 C.F.R. Part 790.

Reliance on an Opinion Letter can also form the basis of a good faith defense against the double liquidated damages available under the FLSA, 29 U.S.C. § 260, and the third-year of damages for willful violations.

The best option for establishing these FLSA defenses is to request and obtain an Opinion Letter that addresses your company’s specific practice and factual situation, although employers can also rely on any guidance addressing similar circumstances.

Letters offer employers more guidance

Employers should welcome the return of Opinion Letters as it signals that DOL intends to provide employers with more guidance on how to meet their statutory obligations. The Wage and Hour Division has two important functions: enforcement and compliance assistance. Because DOL can never have enough resources to investigate every workplace, the only path for increasing compliance in all workplaces is to answer employer questions and assist them in complying. DOL’s recently announced FY 2018 budget plan includes a $3 million budget increase for additional compliance assistance for employers.

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If you are interested in obtaining an Opinion Letter from DOL, please contact your Littler attorney. The decision to request an Opinion Letter is a careful calculus: There is always a risk that DOL may not approve your company’s practice, requiring that changes be made.  But, the reward of a complete affirmative defense to FLSA liability is also great.

Opinion Letters and AIs issued from 2001 to the present are posted here.

Guidance on how to request an Opinion Letter can be found here.

This was originally published on Littler Mendelson’s website. © 2017 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Lisa "Lee" A. Schreter is co-chair of the Wage and Hour Practice Group and former chairperson of Littler's Board of Directors. She focuses on representing employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state law.

Lee is a member of Littler's Diversity Council. She previously served as chair of the firm's Nominating Committee and co-chair of the LGBT Affinity Group.

Prior to becoming an attorney, Lee worked in human resources, where she gained extensive experience in wage and hour issues, employee relations, salary and benefit administration and general employment matters.

Tammy D. McCutchen is a principal in the Washington, D.C. office of the law firm Littler Mendelson. A former administrator of the Wage and Hour Division at the U. S. Department of Labor, she is a leading authority on federal and state wage and hour laws who now represents and counsels management clients in connection with all types of labor and employment matters. Contact her at tmccutchen@littler.com.

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