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Labor Department revives opinion letter format

Posted On: Jun. 28, 2017 2:09 PM CST

Labor Department revives opinion letter format

In what experts say is good news for employers, the U.S. Department of Labor said Tuesday it plans to return to issuing opinion letters in response to employers’ queries rather than using the more general, less frequent — and less useful — “administrator interpretations” that had been issued by the Obama administration.

Experts describe the opinion letters, which the Obama administration stopped issuing in 2010, as more valuable in presenting specific guidance to questions about the Fair Labor Standards Act and the Family Medical Leave Act, both of which are subject to Labor Department jurisdiction.

In its announcement Tuesday, the department said an opinion letter is “an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinions.” It said the letters had been a division practice for more than 70 years before being replaced by general guidance in 2010.

Secretary Alexander Acosta said in the DOL statement: “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes.

“The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

The division has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter, said the announcement.

The opinion letters provided more guidance to employers, said Jonathan A. Segal, a partner with Duane Morris L.L.P. in Philadelphia. Only one person may have written to the Labor Department about the issue, but many others may have had the same questions, he said.

“You had insight into what issues the DOL thinks worthy of answering, and what kind of factors are they looking at,” he said. The letters provided “a good-faith basis” for employers to make an assessment in areas where the regulations are unclear, or where there may not be case law or it is not fully developed, Mr. Segal said.

The Obama administration’s interpretations “were not answers to specific questions. They were more policy statements,” and while they provided guidance, they did not answer “the day-to-day issues” with which employers struggle, he said.

Eric B. Meyer, a partner with Dilworth Paxson L.L.P. in Philadelphia, said the letters are a “way for employers to avoid problems, which benefits everyone.

“If an employer in good faith” relies upon such a letter, even if the guidance happens to be incorrect, misconstrued slightly or outdated, it is a way for it to avoid a liquidated damages assessment, he said.

The department’s announcement “is a great first step in reopening the lines of communication” with the employer community “that frankly was absent in the last administration,” said Jeff Nowak, a partner with Franczek Radelet P.C. in Chicago.

Jeffrey W. Brecher, a principal with Jackson Lewis L.L.P. in Melville, New York, said: “Now, there’s at least an opportunity to have a dialogue and get questions answered and issued raised to the DOL that may ultimately result in them issuing new regulations or other guidance documents, if there are repeated requests for the same thing, for example.”

Separately, the Labor Department is looking at reopening public comments on the controversial overtime rule update proposed under the Obama administration.