Given the exponential uptick in wage and hour lawsuits during the Obama administration and the United States Department of Labor’s (DOL’s) continuing aggressive enforcement of wage and hour laws, many employers have felt the risk of a potential lawsuit looming over their heads for pay violations they may not even know exist. Before 2010, Opinion Letters prepared and made publicly available by the DOL were invaluable to employers seeking clarification of a wage and hour rule or regulation. Oftentimes these Opinion Letters were the only guidance available to a company desperately attempting not to run afoul of the Fair Labor Standards Act and its myriad complex regulations. However, in 2010, after 70 years, the practice was stopped in favor of Administrator Interpretations, but the frequency with which those have been issued the past seven years is glacial in comparison to the prior DOL Opinion Letters. In addition, Administrator Interpretations tended to be more general in nature, while DOL Opinion Letters had historically been more comprehensive and nuanced.
In a welcome change for employers, the DOL has just announced that it will begin issuing and making available to the public its Opinion Letters once again. Secretary of Labor Alexander Acosta explained, and employers will likely agree, that “[r]einstating 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.” Secretary Acosta further stated that the 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.” Beyond offering much-needed guidance on the law, this announcement is also helpful to employers that find themselves already in litigation, as DOL Opinion Letters may be cited by employers as an affirmative defense in wage and hour litigation.
To take advantage of what may signal a bit of a positive sea change, at least in terms of wage and hour education, employers are encouraged to use the DOL’s website to review prior Opinion Letters and also submit requests for new ones.