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Department of Labor Issues New Opinion Letters, Reversing Obama-Era Policy

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The Department of Labor (DOL) recently issued its first set of opinion letters since 2010, when the Obama administration suspended the practice of issuing such guidance. The return of opinion letters is welcome news for employers. Among other things, obtaining the DOL’s informal opinion on a wage and hour compliance question may help avoid costly disputes and, in certain circumstances, provide affirmative defenses to liability in the event of litigation.

Prior to 2010, the DOL had a longstanding practice of issuing opinion letters in response to employer inquiries regarding a host of wage and hour questions. These questions ranged from whether overtime exemptions apply to particular employees to questions regarding work hours and minimum wages under the Fair Labor Standards Act (FLSA), as well as special laws governing agricultural workers and garnishments. Under the Obama administration, the DOL suspended the practice of issuing opinion letters in response to employer inquiries. Instead, the DOL began issuing “Administrator’s Interpretations” announcing the DOL’s position on certain legal questions. The DOL’s recent release of three new opinion letters is a return to the agency’s prior, decades-long practice.

Opinion letters can be extremely helpful for employers from a compliance and litigation perspective. Before a dispute arises, employers may submit a set of facts and circumstances and obtain the DOL’s guidance to assist in complying with wage and hour laws. In the event a lawsuit is subsequently filed involving the practice that was the subject of the opinion letter, the employer may use its reliance on the DOL’s advice to significantly reduce liability or avoid liability altogether. The employer’s good-faith efforts to comply with the opinion letter may result in the application of a two-year (as opposed to three-year) limitations period and preclude an award of liquidated damages. Further, other good-faith defenses based on the opinion letter may act as a complete bar to damages. The return of opinion letters means employers can once again seek assistance from the DOL in establishing compliant employment practices.

The new opinion letters are a good example of the range of issues on which an employer might seek guidance from the DOL. The topics include:

  • Whether the FLSA requires the employer to provide paid rest breaks for an employee who requires frequent short breaks as an accommodation for a serious health condition. The DOL concluded that employers are not required to provide multiple paid breaks of less than 20 minutes in duration if the breaks are part of an accommodation for a disability. The wage and hour laws do not require that breaks be provided, but instead require only that breaks for the benefit of the employer of less than 20 minutes be paid;
  • How to determine when travel time is compensable “work” hours when the employee does not have a fixed schedule for certain days of the week. The employer inquired whether employees’ travel time for trips to training events on weekends must be paid if the employee does not have a fixed schedule that excludes weekends. The DOL concluded that out of town travel generally must be paid if it occurs during an employee’s regular workday and work times, and that the employee’s regular workday can be determined by reviewing the preceding month’s time records. If the employee generally worked on the weekend day at issue, then traveling during work hours on that day should be paid; and
  • Whether certain lump sum payments are “earnings” for purposes of garnishment restrictions under the Consumer Credit Protection Act. The employer inquired about the types of one-time, lump sum payments that are subject to the Act’s limits on the amount that can be garnished for certain employee debts. The DOL held that the garnishment limits apply to a payment whenever “the amounts are paid by the employer in exchange for personal services,” and that this included bonuses, commissions, severance pay, and similar lump sum payments. 

In January 2018, the DOL also revived 17 opinion letters issued during the Bush administration that had been rescinded in 2009. These letters similarly address a wide variety of FLSA issues.
Now that the DOL has begun issuing opinion letters, employers may wish to take a fresh look at whether seeking such guidance may assist with specific wage and hour compliance concerns. Proactively seeking the DOL’s opinion can both help avoid a later dispute and limit liability if a dispute arises.