• DOL Reinstates the Issuance of Opinion Letters
  • September 22, 2017
  • On June 27, 2017, the U.S. Department of Labor (“DOL”) announced it will reinstate the issuance of opinion letters (the “letters”), a practice not followed since 2010. The letters allow the DOL’s Wage and Hour Division (“WHD”) to provide guidance to covered employers and employees.

    An opinion letter is issued by the WHD in response to employer inquiries about how the law should be interpreted in specific circumstances. Opinion letters can be opinion letters from the Administrator, which are signed by the Administrator of the WHD (or Acting Administrator or other designee) which represent official interpretations of a statute by the WHD. Or the letters may be non-administrator opinion letters, which are signed by wage and hour officials other than the Administrator; denoted by an “NA” following the opinion letter number; and not official rulings or interpretations, thereby providing “general guidance,” the practice which was followed since 2010.

    Available opinion letters from the Administrator address inquiries concerning: the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), youth employment, and the Migrant and Seasonal Worker Protection Act (“MSWPA”). Available non-administrator letters address inquiries concerning the FLSA, the FMLA, youth employment and wage garnishment.

    Opinion letters are publicly available with employer names redacted or names removed entirely under authority of 5 U.S.C.§552(b)(7) in order to preserve privacy. The website with those letters stopping in 2009 can be visited here: https://www.dol.gov/whd/opinion/guidance.htm

    The public can see if existing WHD guidance already addresses their questions or submit a request for an opinion letter. The applicable webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued. The webpage for requesting an opinion letter is here: https://www.dol.gov/whd/opinion/opinion-request-1.htm

    For assistance with Fair Labor Standards Act (“FLSA”), Family and Medical Leave Act (“FMLA”), youth employment, wage garnishment and Migrant and Seasonal Worker Protection Act (“MSWPA”) issues and help in determining if it is appropriate to seek an opinion letter contact the PK Law Labor and Employment Group.