Wage Hour Division Reinstates Withdrawn Opinion Letters

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By Ben Penn

The Labor Department published 17 opinion letters Jan. 5, reviving legal position statements on wage and hour issues that were initially issued nine years ago and then withdrawn during the Obama administration.

The letters, which provide fact-specific legal interpretations—mostly to employers and management attorneys—mark the first publication of this form of guidance since the previous Wage and Hour Division deemed them an inefficient use of resources and abolished the practice in favor of more broadly applied administrator’s interpretations. Labor Secretary Alexander Acosta announced last June that the letters would be revived.

While employers and employees have been seeking new letters on a variety of topics since June, the publication Jan. 5 doesn’t respond to new requests. Rather, it re-issues letters on topics such as tip credits and whether specific occupations are eligible for time-and-half pay for overtime. The letters were all initially issued in the final weeks of the George W. Bush administration, but then withdrawn when the White House changed hands. Although they were published online, they were never physically mailed to recipients.

“It’s hard to say that any of them is especially significant in its own right,” Paul DeCamp, who ran the WHD during part of the Bush administration, told Bloomberg News. “What is very significant is that the agency has just issued a substantial number of guidance documents that, taken together, are germane to a large number of workers and workplaces throughout the country.”

Critics say opinion letters amount to “get out of jail free” cards for employers facing minimum wage or overtime claims in court. The letters, a common compliance tool in the previous Republican administration, enable companies to present the documents before a judge or investigator as a “good faith” defense.

Upcoming opinion letters that respond to new inquiries since June are likely waiting on the confirmation of President Donald Trump’s nominee for WHD administrator. New topics that have become more relevant over the past nine years include how the FLSA interacts with the burgeoning sharing economy and the growing use of mobile technology to conduct work outside the office.

—Josh Eidelson (Bloomberg News) contributed to this story.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com

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