Earlier this summer, the U.S. Department of Labor (DOL) announced that its Wage and Hour Division will reinstate the practice of issuing opinion letters. The DOL discontinued the practice of issuing opinion letters seven years ago in favor of publishing more general guidance.
Opinion letters provide guidance to employers on how to comply with the law in specific situations. For example, previous opinion letters have discussed whether time spent by employees taking web-based prerequisite classes at home in preparation for a voluntary job-related training class is compensable time under the Fair Labor Standards Act (FLSA).
By contrast, administrative interpretations provide a more general interpretation of the law, making them more readily applicable to a wide variety of situations.
So what do you need to do, as an employer? Nothing. At least, not at this time. Employers can look to opinion letters for guidance on how to comply with the law in specific situations or can request their own opinion letter from the DOL.
A Little Background on Opinion Letters
Opinion letters provide the DOL’s official opinion on how labor and employment laws apply in specific situations. The DOL issues opinion letters after receiving an employer’s request for an opinion. In these requests, employers usually describe a specific situation and pose questions on how to comply with their legal obligations for the particular facts described in the letter.
Publishing opinion letters is a labor intensive process and employers may need to wait several months to receive a response from the DOL. In addition, while the DOL reviews all opinion letter requests, it has traditionally only answered a few, at its discretion. The DOL has published instructions on how to request opinion letters on its website.
Opinion letters can be extremely helpful for employers who are trying to understand their legal responsibilities, particularly in areas where the law seems to be outdated or where compliance with one legal obligation interferes with compliance with another. Indeed, employers that receive an answer to their request can rely on the answer they receive in their efforts to comply with their legal obligations. Employers are also encouraged to review past opinion letters and other DOL guidance to obtain a clearer understanding of their obligations.
However, an employer who seeks the DOL’s opinion regarding a specific situation should understand the risk that the DOL may not agree with its practices, so employers should consider this alternative carefully.
