DOL’s Reissuance of 17 Opinion Letters Called Step in Right Direction

The U.S. Department of Labor’s (DOL) decision to reissue 17 opinion letters first issued during the George W. Bush administration is a welcome move and “a step in the right direction,” according to an attorney who represents employers.

On January 5, the DOL announced that it was reissuing the opinion letters. The move follows the DOL’s announcement last summer that it was returning to the practice of issuing opinion letters, a practice that was discontinued during the Obama administration in favor of issuing “administrative interpretations” of the DOL’s views on issues related to laws and regulations enforced by the department’s Wage and Hour Division (WHD).

Sean D. Lee, a contributor to Federal Employment Law Insider and an attorney with Fortney & Scott, LLC, in Washington, D.C., says since the business community values clarity when it comes to matters of regulation, it will see the reissuance of the letters “as a step in the right direction.”

Before making the change to administrative interpretations, the DOL would provide opinion letters in response to questions from employers about how laws such as the Fair Labor Standards Act (FLSA) applied to their situation.

The reissuance of the 17 opinion letters won’t have a significant effect on most employers since the letters apply only to a particular set of facts, Lee says. “All the same, opinion letters are popular with employers because they provide guidance in understanding complex labor laws like the [FLSA],” he says.

In addition, opinion letters are valuable to employers because “they can supply the basis for a good-faith defense against FLSA claims, both for the original requestor and those in similar situations,” Lee says. “Under the Portal-to-Portal Act, an employer who relies on an opinion letter and acts in good[-]faith conformity with it will be protected against minimum wage or overtime claims.”

What the Letters Cover

Lee says many of the reissued letters address whether particular jobs can be considered exempt under the FLSA’s “white-collar” exemptions—the executive, administrative, and professional exemptions. For instance, he says that the letters conclude that client service managers at an insurance company, product demonstration coordinators, and residential construction project supervisors can be exempt administrative employees—at least based on the facts in the letters.

“On the other hand, one letter found that civilian helicopter pilots did not qualify for the executive, administrative, or professional exemptions,” Lee says. “Beyond questions of exempt status, the letters also address topics such as whether ‘on-call’ hours of work for ambulance personnel are considered compensable under the FLSA, how bonuses affect the calculation of employees’ regular rates of pay, and whether a registered nurse’s salary can be docked for absences.”