Employers have traditionally and frequently relied on the Department of Labor Wage and Hour Division’s “Opinion Letters” in their efforts to comply with increasingly complex wage and hour laws. In seeking guidance from the Wage and Hour Division, employers would present specific factual situations and the Division would provide specific guidance based on those concrete factual situations. Just as important, if not more important to the employer, by receiving such an Opinion from the Division, the employer was provided with an “absolute good faith defense” to liability.
In a March 24th release, the Wage and Hour Division explained that it will no longer provide situation-specific Opinion Letters in response to employer inquiries. Instead, the Division will periodically release “Administrator’s Interpretations” on issues or concerns that it believes requires addressing. Unlike Opinion Letters, the Interpretations will “set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision at issue.” Employers with specific questions, therefore, will be referred to statutes and regulations for guidance.
While technically under 29 U.S.C. § 259, the new Interpretations qualify for the absolute “good faith defense,” it will now be harder for employers to plausibly assert such a defense. This is because Administrator Interpretations will not rely on particularized facts submitted by an employer concerning a given position but will be based upon the Division’s generalized assumptions concerning the duties of a given position. Since exemptions to the FLSA’s overtime and minimum wage requirements depend on an employee’s “actual job duties,” reliance on a generalized Administrator Interpretation may not be appropriate let alone defensible.
Also problematic for employers is that whereas in the past employers could reasonably and reliably turn to the DOL for timely guidance on pressing classification issue through an Opinion Letter request, now the Division will release Administrator Interpretations at its discretion, when it determines that clarification may be needed.
Notably, employers may still rely on previously-issued Opinion Letters in their compliance efforts, so long as these opinions are not superseded by new authority. The new Administrator’s Interpretations, however, provide guidance that is considerably less clear.
In all cases involving compliance with the FLSA and other employment statutes, it is worth consulting counsel when in doubt.