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.