Employment Law Report
Everything Old is New Again….
The United States Department of Labor Has Revived its Practice of Issuing Opinion Letters
Under the Obama Administration, the DOL’s Wage & Hour Division ceased issuing Opinion Letters and undertook the practice of issuing Administrator’s Interpretations which were designed to set forth generally applicable interpretations of the law and regulations unrelated to particular employers or industries. Previously, the DOL preferred to offer written Opinion Letters demonstrating how the law or regulations applied in particular circumstances when requested to do so by employers, employees or other entities. On June 27, 2017, the DOL revived its practice of issuing Opinion Letters. At the same time, the DOL issued guidance on how to request an Opinion Letter, which can be found here: https://www.dol.gov/whd/opinion/opinion-request-1.htm. While an Opinion Letter can provide an employer a good faith defense against liquidated damages, the decision to request an Opinion Letter should be carefully considered.
The DOL’s decision to resume issuing Opinion Letters may signal an effort to provide increased compliance assistance to employers. The DOL issued only eleven Administrator’s Interpretations from 2010 to 2016. In contrast, before the DOL stopped offering Opinion Letters, it issued dozens each year.
The DOL Withdraws Its Joint Employer and Independent Contractor Misclassification Administrator Interpretations
Although only eleven Administrator’s Interpretations were issued from 2010 to 2016, the DOL announced that effective June 7, 2017 it was withdrawing two of them: Administrator Interpretation 2015-1 on independent contractor misclassification and 2016-1 on joint employment. The DOL cautioned, however, that “removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction.”