Having Trouble Finding Recent DOL Opinion Letters?
If you’ve been having trouble finding recent U.S. DOL wage and hour opinion letters, you are not alone. In fact, the DOL has not issued an opinion letter regarding the FLSA since January 16, 2009 (when it also curiously withdrew 14 of them for “further consideration”). What happened? The DOL determined that it is no longer going to be issuing wage and hour opinion letters.
Instead, the DOL will be issuing “Administrative Interpretations” which “set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue.”
Why the change? Perhaps it has something to do with DOL resources and focusing its efforts on enforcement. Indeed, the DOL claims that “this will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations, where a slight difference in the assumed facts may result in a different outcome.”
Requests for opinion letters may still be submitted, but will no longer receive responses that analyze the facts of the given situation. Instead, the respoonses will only reference the applicable statutes, regulations, interpretations and cases. Interestingly, the DOL also indicated that “requests for opinion letters will be retained for purposes of the Administrator’s ongoing assessment of what issues might need further interpretive guidance.” So, if a lot of employers are confused about the same issue, it appears that the Administrator may take a hint and issue a clarifying letter.
The first Administrative Interpretations Letter was issued on March 24, 2010 and provides a detailed analysis of the Mortgage Loan Officer position, explaining why this position is not exempt from the overtime pay requirements under the administrative exemption. The nine-page letter provides a detailed analysis of the case law and regulations regarding this area. How helpful these Administrative Interpretations Letters wind up being remains to be seen and will likely depend upon the topics chosen and the frequency with which they are issued.
