On January 5, 2018, the Wage and Hour Division of the U.S. Department of Labor (DOL) reissued 17 advisory Opinion Letters that were published during the final months of former President George W. Bush’s administration, but were subsequently rescinded by the Obama administration. Opinion Letters do not establish new law, but instead are vehicles through which employers can ask the DOL for formal answers to specific compliance questions pertaining to the Fair Labor Standards Act (FLSA) and for the DOL to provide guidance to employers on a wide range of topics regarding oftentimes complex or perplexing wage and hour issues. Opinion Letters are intended to be “fact-specific” based on the facts presented in the individual inquiry, but the information set forth in them provide valuable insight into how the DOL interprets specific provisions of the FLSA. These interpretations are frequently cited by courts when resolving FLSA lawsuits. The Obama DOL had discontinued the practice of issuing Opinion Letters in favor of publishing more (and less helpful) Administrator Interpretations.
The reinstated letters cover a wide variety of topics. Many of the reissued Opinion Letters concern the exempt status of specific job positions in specific industries under section 13(a)(1) of the FLSA, as defined in the Part 541 of the Code of Federal Regulations. For example, some address questions about the exempt status of civilian helicopter pilots, client service managers of an insurance company, residential construction project supervisors and consultants, clinical coordinators, and business development mangers of a healthcare placement company. Of broader relevance, however, two of the reinstated Opinion Letters address inquiries about the salary basis test for exempt status, as defined in 29 C.F.R. § 541.602. Also of note is a reinstated Opinion Letter addressing on-call scheduling – FLSA2018-1 – in which the agency concluded that on-call hours of employees of an ambulance service are not compensable under the FLSA.
Other topics included in the reissued Opinion Letters include whether certain bonuses or other payments should be included in calculating employees’ regular rates of pay pursuant to section 7(e) of the FLSA, whether a plumbing repair and service business qualifies as a retail or service establishment exempt from overtime under section 7(i) of the FLSA, and whether a non-profit company and for-profit company are joint employers of volunteers of the non-profit. For a complete list of the re-issued Opinion Letters, see here.
Employers should take appropriate steps to ensure they are in compliance with reissued Opinion Letters.
Information on how to request an Opinion Letter from the DOL can be found on the DOL’s website, including what to include in an Opinion Letter request, and where to submit an Opinion Letter request. It is unlikely, however, that the DOL will issue any new Opinion Letters until the currently vacant Wage and Hour Division Administrator is in place.