Opinion letters have long been one of the most useful resources for lawyers and HR professionals trying to figure out how to comply with the laws enforced by the WHD, including the Fair Labor Standards Act and Family and Medical Leave Act. Through the opinion letter process, a requester could submit a letter to the WHD asking for an opinion on how the law applies to a given set of facts. The WHD would respond to those questions and publish the responses so that they could be used by others as guidance.
In 2010, the DOL dropped this practice in favor of issuing broad “Administrator Interpretations” announcing the Department’s views on various issues. This was seen by many – both fans and critics – as an effort by the DOL to exert greater influence over development of the law without recourse to time-consuming rulemaking or the legislative process. Unfortunately, it also meant that employers seeking to comply with the FLSA and FMLA lost a useful source of guidance. While prior opinion letters remained generally available (unless they were expressly withdrawn), no new letters were issued after the change in policy.
The DOL website has been updated with information on where and hour to submit opinion letters. Anyone who wishes to request an opinion letter can find this information at https://www.dol.gov/whd/opinion/opinion-request-1.htm (as of 6/27/2017). While employers can certainly seek guidance on their own, they can also submit a request through their legal counsel in order to preserve their anonymity.
The opinion letter process was never perfect – responses often took many months and were sometimes less than helpful for employers seeking clear, definitive guidance. However, they were and are a useful tool. While the content of any new opinion letters remains to be seen, at least in principle their return is likely a good thing both for employers that want to comply with the law and the workers who will benefit.
Here is the DOL’s announcement, for those of you who aren’t on the Department’s e-mail list:
The U.S. Department of Labor will reinstate the issuance of opinion letters, U.S. Secretary of Labor Alexander Acosta announced today. The action allows the department’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.
An opinion letter is an official, written opinion 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. The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010.
“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta. “The U.S. Department of Labor 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.”
The division has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.