It’s Back to the Future at the Labor Department



Opinion letters are in and administrator’s interpretations are out at the Labor Department.

The letters were a Wage and Hour Division mainstay for more than 70 years until March 2010, when the Obama administration changed the policy. For seven years, the division responded to guidance requests by providing references to statutes, regulations, interpretations, and relevant cases, but without an analysis of the facts that were presented.

“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,” Labor Secretary Alexander Acosta said June 27 in a statement.  “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

Under the renewed policy, the division established a webpage with resources for employers and workers. For employers, the resources include access to a regulatory library administered by the division, industry-specific information, bulletins, forms, and posters. There also is a link for employers to request an opinion letter.  

The change in policy appeared to be coming earlier in June after the Labor Department withdrew federal interpretations that broadly defined employee status and what may be a joint-employment relationship. The  interpretations, which were issued by David Weil, who was Wage and Hour Division administrator during the Obama administration, were conceived so that more workers could be considered employees and more entities could be considered joint employers.

“Removal of the two administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act or Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department's long-standing regulations and case law,” the department said.

The move by Acosta to bring back opinion letters clearly altered the course of the Labor Department, which also is expected to give its position on another Obama-era policy: a rule to double the salary threshold to $47,476, below which workers qualify for overtime pay of time and one-half hours.  The rule was put on hold Nov. 22, 2016, by a federal judge in Texas. The injunction triggered an appeal by the Obama administration Justice Department. Since then, President Donald Trump's Justice Department has three times requested more time to file a brief on that appeal.

 Additional comments on the rule were sought June 27 by the Labor Department.

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