US DOL’s Opinion Letters Are Making a Comeback

Employers can soon expect more descriptive guidance from the US Department of Labor (DOL). The agency has decided to bring back the “Opinion Letter,” a form of fact-specific guidance which it stopped issuing in 2010. An Opinion Letter is an official, written opinion of how a particular law, usually the Fair Labor Standards Act (FLSA) or the Family and Medical Leave Act (FMLA), applies to specific circumstances presented by an employer, employee or other entity requesting the opinion. In litigation, Opinion Letters give similarly situated employers who acted in good faith reliance on an Opinion Letter a potential defense to conduct that might otherwise violate a particular law.

In 2010, the DOL replaced Opinion Letters with more generalized guidance in the form of “Administrator’s Interpretations.” Administrator Interpretations were intended to provide an interpretation of the law that would be applicable to an entire industry, a category of employees, or to all employees. The agency reasoned that responses to fact-specific requests, where a slight difference in the assumed facts could result in a different outcome, were a less efficient and productive use of resources. That said, the agency only issued 11 Administrator Interpretations between 2010 and 2016, and two of those were subsequently withdrawn.

With the reinstatement of Opinion Letters, the DOL will be providing a means by which employers and employees can develop a clearer understanding of what compliance with the FLSA or the FMLA entails without being overloaded with confusing legal terminology or frustrated by the lack of factual context, which were problems with Administrator’s Interpretations. Employers will also be able to use these Opinion Letters to establish good faith defenses to liability.

The division has established a “Rulings and Interpretations” webpage where anyone can request an Opinion Letter. The webpage explains what to include in the request and how to submit the request. The process is slow and not all requests for Opinion Letters will be granted. Interested members of the public can also access prior Opinion Letters, Ruling Letters, Administrator Interpretations, Field bulletins, or the Field Operations Handbook from the “Rulings and Interpretations” webpage.

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