The U.S. Department of Labor (DOL) made two announcements on June 27, 2017 certain to please employers across the country. Businesses and advocates will soon be permitted to seek advisory opinions from the DOL on federal wage and hour topics – a more than 70-year practice that was discontinued in 2010 under the Obama administration. At the time, the Obama DOL favored Administrator Interpretations, which contained more general guidance, as opposed to Opinion Letters, which are official written opinions 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.
From 2010 to 2016, the DOL only issued a total of 7 Administrator Interpretations with respect to Fair Labor Standards Act (FLSA) issues, only 2 with respect to the Family and Medical Leave Act, and 2 with respect to specific agricultural issues. By contrast, the DOL issued 36 Opinion Letters in 2009, 19 in 2008, 12 in 2007, and 46 in 2006.
The DOL’s announcement (in no uncertain terms: “Opinion Letters are back!”) will open the door for employers to seek guidance from the DOL on wage and hour compliance issues. Employers who receive an Opinion Letter will also be able to plead as an affirmative defense in wage and hour lawsuits that that they relied on such Opinion Letter as evidence that they acted in good faith conformity with an interpretation of the DOL’s Wage and Hour Division.
On the same day, June 27, 2017, the DOL announced that it had sent a request for information on the overtime rules to the Office of Management and Budget. This process will allow the public to comment on various questions raised by the overtime rules published in 2016. See the The 2016 overtime Final Rule, which we covered in a previous Legal Alert here, most notably increased the minimum salary required for employees to be properly considered exempt from overtime under one of the FLSA white collar exemption tests for executive, administrative, and professional employee. Employers will also recall that a federal district court in Texas temporarily blocked the DOL’s overtime rule on November 22, 2016, which we covered in a previous Legal Alert here, maintaining the status quo and prevented the scheduled increase in minimum salary from taking effect.
Employers still do not have to comply with the 2016 overtime regulations as the nationwide temporary injunction remains in place and the regulations are presently being challenged before the Fifth Circuit Court of Appeals. As employers, employees, unions, and trade organizations get the opportunity to comment on the regulations pursuant to the DOL’s new request for information, employers should continue to monitor any steps the DOL takes to revise the overtime regulations.