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DOL: Return of the Opinion Letter

By Jim Swartz

On June 27, 2017, the U.S. Department of Labor (DOL) announced that “Opinion Letters are back!” During a hearing before the Senate Appropriations Subcommittee on Labor, Health, and Human Services, Labor Secretary Alexander Acosta announced that DOL will once again provide Opinion Letters to employers regarding specific compliance questions.

Opinion Letters are official written opinions issued by the DOL’s Wage and Hour Division that explain how the DOL enforces the Fair Labor Standards Act (“FLSA”) in specific circumstances presented by employers, employees, or other entities requesting the Opinion Letter. Secretary Acosta’s announcement is a reversal of the March 2010 position of the DOL decision to no longer issue Opinion Letters.

The DOL’s renewal of its Opinion Letter program opens the door for employers to raise specific wage-and-hour compliance situations to the DOL and seek the DOL’s opinion regarding the employer’s intended approach. Reliance on an Opinion Letter may enable an employer, when faced with a subsequent lawsuit under the FLSA, to plead and establish the complete affirmative defense that it acted in “good faith conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation” of the Wage and Hour Division. 29 U.S.C. § 259. In addition, it may also help an employer establish that any violation of the FLSA established after relying on an Opinion Letter was non-willful, thereby limiting a plaintiff’s damages to a two-year period (instead of three years for a willful violation). The type of clarity provided by Opinion Letters cuts both ways, of course. The DOL may determine that a presented pay practice violates the FLSA, in which case the employer would be wise to modify its actions to comply with the DOL’s view of the law.

From a planning perspective, employers should anticipate lengthy waits for responses to requests for Opinion Letters. The DOL exercises its discretion when deciding which Opinion Letter requests it will consider, and with anticipated cuts in resources at DOL, the timeline for receiving a response may be protracted. Nevertheless, employers should welcome the return of this practical compliance guidance from official channels and should consider availing themselves of this additional option for obtaining certainty for those gray areas of wage-and-hour law.