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The return of wage and hour opinion letters

Dickinson's Employment Law attorneys contribute materials and presentations to professional associations and employers on a range of employment and labor topics. Our compliance specialist, Mike Staebell has extensive knowledge of federal law and can serve clients anywhere in the country or right here in Iowa.  


 

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Posted on 07/03/2017 at 12:00 AM by Mike Staebell

On June 27, the US Department of Labor (DOL) announced it will resume its policy of issuing official Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA) Opinion Letters. For 70 years, DOL’s Wage and Hour Division (WHD) had issued Opinion Letters, based on questions submitted by employers, employees, and their representatives, that addressed specific applications of FLSA and FMLA regulations. In 2010, the Obama DOL discontinued Opinion Letters, replacing them with “Administrator Interpretations”, or AI’s. AI’s are more general interpretations, related to an entire industry or industry practice.  Opinion Letters, on the other hand, are official written guidance by WHD of how a particular statute or regulation applies in specific circumstances.   

In 2010 when Opinion Letters were discontinued, I was the District Director for the WHD’s Des Moines District, which encompasses Iowa and Nebraska. At the time, the majority of WHD staff nationwide were upset that the OL’s had gone by the wayside. They recognized the value of this detailed guidance. And I received numerous calls and emails from employers, attorneys, and human resource professionals expressing their unhappiness.  As time passed, the frustration grew when few AI’s were issued. WHD published only 11 AI’s from 2010 through 2016.  Compare that to 2005 when WHD issued 76 FLSA and FMLA Opinion Letters in that single year!

Based upon the discontinuation of Opinion Letters and other factors that I observed during my time at WHD, I felt that the Obama DOL did not place the same high value on providing employers with compliance assistance as did earlier administrations (of both political parties). There is irony in this approach, given the degree to which the Obama DOL pushed the enforcement envelope under all its statues. If reinstating Opinion Letters is any indication, the Trump and DOL Secretary Alex Acosta understand the value of providing the regulated community with specific, detailed guidance on how to comply with DOL regulations. In my experience, employers who have FLSA and FMLA guidance at their disposal are more likely to use those resources and are more likely to be in compliance.  

Guidance value is not the only reason to welcome back Opinion Letters. They not only provide employers with another tool to assist them in complying with the FLSA and FMLA, but in the event of a WHD investigation, an employer’s reliance on an Opinion Letter can be the basis for a good faith defense against WHD’s assessment of liquidated damages (double back wages) under the FLSA, and the extension of the FLSA statute of limitations from two years to three, if WHD pursues violations it believes are willful.   I say that it’s all good that Opinion Letters are coming back.   

As part of this reintroduction, DOL/WHD unveiled new web pages: “Request an Opinion Letterand “Rulings and Interpretations.” In addition to an archive of previous Opinion Letters and AI’s, the “Rulings and Interpretations” page has a link titled “Other Interpretive Guidance”, which includes sections of the WHD Field Operations Handbook (WHD’s internal enforcement manual), and certain internal agency enforcement bulletins. There is a wealth of excellent, easily accessible guidance on these pages that will assist employers in their often-difficult quest to comply with the FLSA and FMLA. Kudos to DOL Secretary Alexander Acosta for bringing back the popular Opinion Letters.  As a retired, long-time WHD employee who now works to help employers stay in compliance with DOL rules, I say thank you. But Mr. Secretary, can’t you make the letters searchable?

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Mike Staebell 

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