DOL replaces opinion letters with new ‘administrator interpretations’

On Mar. 24, the U.S. Department of Labor ended its 50-year-old practice of issuing opinion letters to answer employers’ specific questions about complex wage-and-hour issues, replacing them with “administrator interpretations” designed to offer general guidance on how to comply with federal pay laws.

According to some employment law attorneys, the change may be the strongest signal yet that the DOL now favors employees over employers where pay disputes are concerned.

Opinion letters were highly fact-specific and based on particular issues and questions raised by particular employers. In contrast, administrator interpretations will offer references to statutes, regulations and court cases.

From now on, when employers seek wage-and-hour guidance from the DOL, they’ll probably receive administrator interpretations instead of opinion letters. A statement from the DOL’s Wage and Hour Division did not rule out ever issuing more opinion letters, but strongly suggested that they would be rare.

According to the statement, “this 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.”

For an example of an administrator interpretation—the Wage and Hour Division’s first—see “Administrator’s Interpretation No. 2010-1”.

For an example of an opinion letter, see “Opinion Letters – Fair Labor Standards Act – FLSA2009-18”.

Attorneys who represent employers blasted the change, saying it signals that the Obama administration’s DOL fundamentally favors employees over employers.

Noting that the Labor Department recently announced a major media campaign to tell workers how to complain about alleged Fair Labor Standards Act (FLSA) violations, attorney James Coleman of Constagny, Brooks & Smith said, “When it comes to employees, the DOL is bending over backwards to educate them as to their rights under the FLSA, but when it comes to employers, the DOL is no longer willing to even respond to their specific inquiries where they are attempting to seek additional guidance.”

The Morgan Lewis law firm issued a statement calling the change to administrator interpretations “a stunning departure from accepted practice.” The firm predicted that the DOL will use administrator interpretations to “reclassify as nonexempt employees who were previously thought to be exempt based on prior DOL regulation and guidance.”

For more information on administrator interpretations, see www.dol.gov/whd/opinion/opinion.htm.