Tag Archives: DOL Opinion Letters

After Decade of Silence, DOL on Opinion Letter Spree

Contributed by Noah A. Frank, January 8, 2019

We previously reported that in 2018, the U.S. Department of Labor (DOL) began issuing opinion letters again after nearly a decade of silence. While the legislature makes laws, the consequences of presidential elections flow into the executive agencies charged with administering and enforcing the laws. 

As of the close of 2018, the DOL had issued more than 30 new opinion letters involving the Family and Medical Leave Act (FMLA) or Fair Labor Standards Act (FLSA), and those letters addressed a variety of topics including minimum wage and overtime for employees paid varying rates, the compensability of frequent rest breaks required as a reasonable accommodation for a disability, and travel time. The DOL’s opinion letters represent the agency’s official interpretation of how it would enforce the statutes under its jurisdiction. Employers, especially those operating close to the margins of the law, should pay careful attention to these opinions and adjust their practices accordingly. 

Companies with questions or concerns relating to FMLA and FLSA practices may also wish to seek their own opinions letters—which may be submitted anonymously, through counsel—for clarity regarding complicated compliance matters. Additionally, given the substantial risks and liabilities that may arise from medical leave and wage & hour administration, companies should also err on the side of caution by seeking the advice of knowledgeable employment counsel, and regularly undertaking audits of FMLA and FLSA-related policies and practices.

DOL Reinstates Wage and Hour Division Opinion Letter Process

By Steven Jados, June 29, 2017

On June 27, 2017, the United States Department of Labor (DOL) announced that it is reinstating the DOL’s Wage and Hour Division opinion letter process, which was in existence for more than 70 years prior to a change in procedure in 2010.

Gavel2

gavel on a white background 

DOL opinion letters allow employers (and employees) to submit questions to the DOL regarding whether particular employment practices comply with the laws the DOL enforces. The DOL then has the discretion to respond, publicly, with appropriate guidance. Opinion letter guidance can be presented to courts and investigators—by the employer that submitted the question, or by any other employer that reasonably relied on the opinion letter’s guidance—as part of a good-faith defense to allegations of wage and hour law violations.

To aid the opinion letter process, the DOL has established a website that provides additional information on how to submit opinion letter requests, and how to access prior opinion letter guidance.

The bottom line: Employers with close-call questions as to whether their wage and hour practices comply with the law now have another avenue to use to avoid potential exposure to wage and hour claim liability.  With that in mind, employers who wish to make use of the DOL’s opinion letter process should review the DOL’s website, and contact experienced labor and employment counsel to obtain additional assistance with drafting and submitting opinion letter requests.