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Department of Labor Opinion Letters Are Back

The U.S. Department of Labor announced today that it will reinstate the Department’s long-standing practice of issuing opinion letters to employers and employees regarding application of the Fair Labor Standards Act.  The Obama Administration eliminated opinion letters in favor of broader “Administrator Interpretations,” but those were few and far between. “The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010,” the DOL release said. 

Opinion letters address specific, and often nuanced questions, regarding application of the FLSA and its implementing regulations. They provide guidance to employers, who, under the FLSA can rely on the guidance in structuring operations and compensation.  And if the employer relies on the opinion letter, even if a court later decides the DOL opinion letter does not accurately apply the law, the employer may be able to avoid liability under the “good faith” defense established by the FLSA. “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,” said Secretary Acosta.  

At the beginning of the Obama administration, the DOL withdrew, for further consideration, several opinion letters that had been prepared by the Bush Administration, but not mailed prior to inauguration.  During the following eight years of the Obama Administration, however, the DOL did not take any further action with respect to those opinion letters.  It is possible that some of these opinion letters may be reinstated.

Jackson Lewis P.C. © 2021National Law Review, Volume VII, Number 178



About this Author

Jeffrey Brecher, Jackson Lewis, Management Arbitration Lawyer, Labor Litigation Attorney

Jeffrey W. Brecher is a Principal in the Long Island, New York, office of Jackson Lewis, and is Practice Group Leader of the firm's Wage and Hour practice. He has litigated hundreds of cases, defending management at arbitration, before state and federal administrative agencies and at trial.

Mr. Brecher regularly advises clients on compliance with various state and federal laws affecting the workplace, including discrimination and related claims arising under Title VII, Family and Medical Leave Act, Americans with...

Adam S. Gross, Jackson Lewis, employment litigation lawyer, administrative agencies attorney

Adam Gross is an Associate in the New York City, New York, office of Jackson Lewis P.C. He represents management in employment litigation in state and federal court and before administrative agencies.

Mr. Gross handles wage and hour class and collective actions, employment discrimination claims, harassment, retaliation and wrongful discharge claims.

While attending law school, Mr. Gross was a member of the Moot Court Team and contributed to the Urban Law Journal.