As you know, I am a big believer in and proponent of using USDOL Opinion Letters, both in advising clients, understanding the agency’s view, and, more importantly, urging them on courts as good authority for the premise I may be arguing. Well, the fact that a federal court has just refused to accept the agency’s view on a particular topic (i.e. whether sleeping time in their sleeper berths is working time) indicates that, perhaps, these Opinion Letters might not be as persuasive as I had thought (and hoped).
The decision shows a skeptical approach to the agency position. It shows a weakening of the strength of these agency considered opinions; in this regard, the Obama administration had stopped issuing such letters but this Administration has gone back to that practice and I have applauded it as I believe these letters are very instructive and helpful for management-side practitioners like myself in advising clients how to be complaint with the FLSA.
The agency issues the letters in response to questions from employers, employees, unions or any entity or individual who wants guidance on a specific issue, often one that is vague or gray, as the Fair Labor Standards Act often is. These letters can provide a good faith or safe harbor defense for employers in a lawsuit (and I have done this several times, successfully) but the employer must be able to show it was guided by the letter when it implemented the policy or practice. But, a court is not bound, legally, to follow the dictates of the letter and will do so (only) if it is persuasive.
As one commentator has noted, “the DOL opinion letters are pretty fact-specific, and the farther an employer or another party gets from the applicable facts, the less reliable it can be.” In other words, a given Opinion Letter is not a gilt-edged “get out of jail free” card; the employer must stay within the four corners of the letter or else it will be less persuasive to a court on the particular issue.
Naturally, the plaintiff lawyer in a given case will argue that the letter is a “deviation” from precedent and policy and thus is unworthy of deference. That may give employers pause when they decide to blindly follow the pronouncement in a letter, especially if the letter is reversing a longstanding position held by the agency.
Given this, I nevertheless remain a “true believer” in the guidance that USDOL Opinion Letters (or the letters or field guidance from state DOLs) offers to employers. If there is established judicial precedent on an issue and a letter takes a different approach, then employers should be wary and tread with caution.
But don’t be trapped into paralysis by (over) analysis…