United States: "They're Back. . . Part II: The DOL Reissues 17 Previously Withdrawn Opinion Letters"

Last Updated: January 11 2018
Article by Loren Gesinsky and Jacob Oslick
Most Read Contributor in United States, December 2017

Seyfarth Synopsis: The DOL has reissued 17 opinion letters it withdrew in 2009. It has also issued two new field assistance bulletins. The DOL's new openness to answering employer questions, and providing written guidance, harbors good things for both employers and employees.

Hey-la, hey-la, opinion letters and field assistance bulletins are back! They've been gone for such a long time. But they're back, and they're coming to provide needed clarity on how employers can comply with wage and hour laws. That's the message the U.S. Department of Labor's Wage and Hour Division sent last Friday, January 5th, when it reissued 17 opinion letters that it withdrew in March 2009.

The reissued letters include 15 drafted by former DOL Acting Administrator Alex Passantino, now a Seyfarth Partner. They cover topics such as whether athletic coaches qualify as "teachers" for purposes of the administrative exemption (generally yes, if coaching is their "primary duty"), and whether a per diem "job bonus" could be excluded from a non-exempt employee's regular rate (in short, "no"). The reissuances follow on the heels of the DOL's decision, in June 2017, to once again respond to employer questions regarding wage and hour laws by issuing formal guidance in the form of an opinion letter. [We previously covered the DOL's announcement here]. And it was accompanied by the issuance, also on January 5th, of two new field assistance bulletins, with one concerning interns at for-profit employers [see our blog post here].

For employers, the benefits of DOL opinion letters and field assistance bulletins are obvious. The Fair Labor Standards Act contains a "good faith" defense that allows employers to avoid liability if they can prove the challenged pay practice aligns with the DOL's written guidance. Thus, if an employer requests and receives an opinion letter stating that a particular pay practice is compliant, that can protect employers from lawsuits — effectively telling overly zealous plaintiffs' attorneys to take a permanent vacation from challenging the practice.

What is less well known is how employees also stand to benefit from the DOL's decision to again issue opinion letters. To this end, it's important to remember that the DOL's job isn't to give employers a legal beating or make them sorry they were ever born.. It's to ensure that employers pay their workers properly, and otherwise comply with the law. And, just as a "positive" opinion letter can help an employer defend a policy in court, a "negative" opinion letter sends an awfully strong warning to the requesting employer and similarly situated employers to change their policies fast.

For employees — although not necessarily plaintiffs' attorneys — this seems far preferable to simply letting a potentially unlawful pay practice continue indefinitely. True, at some point, a disgruntled employee may file suit and claim that the employer is cheating him or her. And, ultimately, that may lead to a jackpot verdict with liquidated damages for the employee or a collective. But lawsuits are comparatively rare and, when successful, often result in the plaintiffs' attorneys receiving far more money than the affected employees. By the time a lawsuit may happen to get filed and a collective is conditionally certified (if conditional certification is granted), employees may have worked for many years under an improper practice — and thus be time-barred from recovering damages for the entire period. Then the lawsuit may not succeed, or it may take years to recover anything. Most likely, it will lead to a settlement that will offer employees a fraction of their allegedly lost pay. Conversely, if an employer changes its pay practices in response to "negative" guidance from the DOL, employees obtain relief immediately.

All that said, the impact of the DOL's new openness to opinion letters is not yet known. Opinion letters will take some wage and hour disputes and cut them down to size. But, historically, the DOL was not able to answer all employer inquiries. Those to which the DOL did respond generally involved highly-detailed, specific fact patterns that did not necessarily afford comfort to anyone other than the employers who posed the questions. Indeed, although the DOL began accepting requests for opinion letters back in June, and reissued the withdrawn letters from 2009, it has not yet issued a new opinion letter. Is that a harbinger of little to come? We hope not. Now that opinion letters are back, there's reason to hope that things will be fine. [Cue to "My Boyfriend's Back", by the Angels.]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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