In the second bit of wage hour news today, and in advance of Secretary Acosta’s hearing before a Senate Appropriations subcommittee, the Department of Labor announced the return of opinion letters. In 2010, the Obama Administration had eliminated the long-standing practice of issuing opinion letters in favor of Administrator Interpretations.
The Department’s announcement allows the regulated community to request formal guidance from the Wage & Hour Division on issues under its jurisdiction (e.g., FLSA, FMLA, Davis-Bacon, SCA). In some circumstances, an opinion letter may operate to bar or limit an employer’s liability for a wage-and-hour-related practice.
The Department has created a web page for the opinion letter process, containing guidance on items such as how to make a request. Not surprisingly, the Department states that it “will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.” Opinion letters are labor-intensive, and not every request will result in a response. As a result, employers should carefully consider the issues they believe will result in the greatest impact and make their request accordingly.