Marking another change, the DOL announced that it is changing the format through which it delivers written guidance, and will no longer release fact-specific guidance through opinion letters. Employers, employees, unions and legal counsel have long relied upon opinion letters to address exempt/non-exempt status and other questions under the Fair Labor Standards Act (FLSA), as well as other statutes, in the context of specific fact situations. Going forward, the Wage and Hour Division Administrator will issue “administrator’s interpretations,” which will provide general interpretations of wage and hour laws and regulations that will apply to a broader range of employers. 

Furthermore, administrator’s interpretations will be issued only when the administrator believes that it is appropriate to provide further clarity on the proper interpretation of a statutory or regulatory issue, and not necessarily in response to a particular request. The DOL’s position is that the administrator’s interpretations “will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations, where a slight difference in the assumed facts may result in a different outcome.” 

The DOL has not entirely foreclosed the issuance of opinion letters, but rather has stated that requests for opinion letters will be responded to by providing reference to relevant statutes, regulations, interpretations and cases, but without analysis of the specific facts in the request. The DOL will retain opinion letter requests for the ongoing assessment of topics for further administrative guidance.

Many questions remain regarding the administrator’s interpretations. Will the administrator’s interpretations receive any deference from the courts? Will this guidance provide a basis for employers to plead and prove an affirmative defense under the FLSA based on good faith reliance on the written rulings and interpretation of the Wage and Hour Division? Will the DOL issue administrator’s interpretations with any regularity, and will those that follow supersede prior opinion letters on which employers and employees have relied?

We will be monitoring the DOL's use of administrator's interpretations and provide additional guidance as appropriate.