Continuing the pro-business activities many expected from the agency, the U.S. Department of Labor has revived 17 Fair Labor Standards Act opinion letters that were published in the waning days of the Bush Administration in January 2009 but promptly withdrawn by the Obama DOL in March of that year. The opinion letters were reissued verbatim on January 5, 2018, albeit with new identification numbers.
DOL Opinion Letters
Historically, the DOL issued opinion letters in response to specific fact patterns presented by employers and other members of the public. Businesses found the opinion letters exceptionally helpful, not only because they provided insights into the DOL’s enforcement position on wage and hour issues, but because reliance on the letters could—in the right circumstances—provide a complete defense to an FLSA claim. Conversely, because DOL opinion letters are often characterized as being limited to the specific facts presented to the agency, employers whose circumstances differed in a material way from those described in the letters could rest assured that the letters would not be used as a blunt instrument to challenge a wider range of practices.
DOL Stops Issuing Opinion Letters in 2010
Beginning in 2010, the DOL discontinued the practice of issuing opinion letters and began publishing “Administrator’s Interpretations”—broad pronouncements of the agency’s views on wage and hour issues that were unlinked to any particular fact patterns. Many businesses bemoaned the shift in policy, and critics pointed to the ways in which the Administrator’s Interpretations departed from the case law, statutory provisions, and regulations on their subjects. On a more fundamental level, many businesses viewed them as yet another way the Obama-era federal agencies were circumventing the traditional notice-and-comment rulemaking process in furtherance of an expansion-of-rights agenda.
DOL Announces Return of Opinion Letters in 2017
In June 2017, the Trump DOL began to undo some of the sub-regulatory activism of the prior administration by affirmatively withdrawing two Administrator’s Interpretations, No. 2015-01 (on independent contractors) and No. 2016-01 (on joint employment)). Later that month, the DOL announced that it would return to the practice of issuing opinion letters to provide guidance to employers and employees on FLSA issues. As Labor Secretary Alexander Acosta explained at the time, “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the [FLSA] and other statutes … [DOL] 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.” We noted at the time that the shift would be a welcome one for employers and business owners hoping for a more conciliatory, and less punitive, enforcement environment as well as more clarification of the many complex rules around wages and hours.
January 8, 2018 Opinion Letters
Here are the opinion letters reissued by the DOL on January 8, 2018:
|No.||Previously Issued As||Subject|
|2018-1||FLSA2009-7 (Jan. 14, 2009)||Compensability of “on call” hours|
|2018-2||FLSA2009-8 (Jan. 14, 2009)||FLSA § 7(i) “retail sales” exemption|
|2018-3||FLSA2009-9 (Jan. 14, 2009)||Exempt status of helicopter pilots|
|2018-4||FLSA2009-1NA (Jan. 15, 2009)||Exempt status of project superintendents|
|2018-5||FLSA2009-2NA (Jan. 15, 2009)||Regular rate calculation|
|2018-6||FLSA2009-10 (Jan. 15, 2009)||Teaching exemption and coaches|
|2018-7||FLSA2009-25 (Jan. 16, 2009)||Salary basis and full-day deductions|
|2018-8||FLSA2009-26 (Jan. 16, 2009)||Exempt status of client service managers|
|2018-9||FLSA2009-27 (Jan. 16, 2009)||Year-end bonuses and the regular rate|
|2018-10||FLSA2009-29 (Jan. 16, 2009)||Exempt status of project supervisors|
|2018-11||FLSA2009-30 (Jan. 16, 2009)||“Job bonuses” and the regular rate|
|2018-12||FLSA2009-31 (Jan. 16, 2009)||Exempt status of clinical coordinators and business development managers|
|2018-13||FLSA2009-32 (Jan. 16, 2009)||Exempt status of fraud/theft analysts and agents|
|2018-14||FLSA2009-33 (Jan. 16, 2009)||Salary basis and salary deductions|
|2018-15||FLSA2009-34 (Jan. 16, 2009)||Exempt status of event coordinators|
|2018-16||FLSA2009-35 (Jan. 16, 2009)||Volunteer EMTs and joint employment|
|2018-17||FLSA2009-36 (Jan. 16, 2009)||Exempt status of home construction supervisors|
According to the DOL, each reissued opinion letter “is an official statement of [DOL Wage and Hour Division] policy and an official ruling for purposes of the Portal-to-Portal Act.”
The Portal to Portal Act of 1947 added two significant safe harbors to the FLSA, both of which implicate DOL opinion letters. The first, codified at 29 U.S.C. § 259(a), provides a complete bar to an FLSA minimum wage or overtime claim if the employer “pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [DOL], or any [relevant] administrative practice or enforcement policy of such agency.” The safe harbor will apply even if the DOL regulation, order, ruling, approval, interpretation, practice, or enforcement policy on which the employer relied is later modified, rescinded, or determined by a court to be invalid.
The second safe harbor, codified at 29 U.S.C. § 260, empowers a court in its “sound discretion” to award less than 100% liquidated damages—or no liquidated damages at all—if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that it had reasonable grounds for believing that the act or omission was not a violation of the FLSA. (Absent such a showing, a prevailing plaintiff could recover liquidated damages in an amount equal to the unpaid minimum wages or overtime, under 29 U.S.C. § 216(b).)
Employers whose acts or omissions conform to those deemed lawful by DOL opinion letters can take advantage of both safe harbors. In addition, under 29 U.S.C. § 255(a), non-willful violations of the FLSA carry a two-year statute of limitations, as opposed to the three-year statute of limitations for willful violations. An employer acting in accordance with a reasonable reading of a DOL opinion letter would ostensibly have a persuasive argument that its violation of the FLSA (if any) was not willful.
Employers eager for guidance on how to comply with the federal wage and hour laws should welcome the reissuance of these opinion letters.