The Department of Labor Restores Bush Era Opinion Letters

22 January 2018 Labor & Employment Law Perspectives Blog

The U.S. Department of Labor (DOL) is turning back the clock in a move that it believes will provide clarity for employers who seek to comply with the Fair Labor Standards Act (FLSA). On January 5, 2018, the DOL reinstated 17 opinion letters to employers that were published in January 2009, during the final month of the George W. Bush administration. The letters, which were quickly withdrawn after Barack Obama took office later that month, are from the Wage and Hour Division of the DOL.

In 2010, the Wage and Hour Division announced that it would no longer follow the practice of issuing opinion letters at the request of employers. The Obama administration preferred the issuance of broader administrative interpretations that detailed the DOL’s views of employers’ legal obligations.  Opinion letters, on the other hand, give employers the opportunity to request formal answers to specific compliance questions. This restoration of opinion letters comes as little surprise, as  Secretary of Labor Alexander Acosta first announced that the DOL would return to the policy of issuing opinion letters in June 2017.

Opponents of the practice express concern over the inefficiency of crafting letters that address one particular employer’s situation and question whether opinion letters create uneven expectations among businesses. On the other hand,  employers generally applaud the return of opinion letters because the letters provide greater clarity for businesses by publicly answering fact-specific questions.  The letters can be particularly useful for employers dealing with similar factual scenarios.

The reinstated letters pertain to a range of topics, including salary deductions, compensable on-call time, bonuses, employee classifications, and exemptions. The DOL’s decision to revive these Bush administration opinion letters appears to follow the pro-business mentality that the Trump administration has brought to Washington, D.C. during the President’s first year in office.

As the DOL reverts back to the policy of issuing opinion letters, it is important to note that the Wage and Hour Division does not currently have an administrator. The Trump administration has nominated Cheryl Stanton, head of the South Carolina Department of Employment and Workforce, for the position.  She is awaiting confirmation by the U.S. Senate.  The Wage and Hour Division may still issue opinion letters in the absence of an administrator unless doing so would delay Ms. Stanton’s confirmation substantially.

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