I am a big believer in the importance of USDOL Opinion Letters because they show the thinking of the agency and how it interprets various provisions of the Fair Labor Standards Act. I often look to the published body of these letters for guidance and I lamented when the DOL (back in 2010) decided to stop issuing these letters. Well, there seems to be good news around the corner. The newly nominated Secretary of Labor, Alexander Acosta, has indicated that he is amenable to re-instituting this practice.
He stated that he believes “there’s a value from opinion letters…from the fact that they’re grounded in a specific set of facts, and not in broad legal premises.” He continued by adding that he sees “no reason why I would not encourage opinion letters.”
The nominee made these comments when responding to a question from Sen. Mike Enzi (R-Wyo.). The Congressman referenced a fairly common employer complaint that the agency stopped issuing this kind of specific (or, sometimes, general) guidance when it decided to issue so-called Administrator’s Interpretations, which were essentially major pronouncements on certain issues, such as independent contractor status and joint employer relationships.
Speaking of which, what is unclear and yet unanswered is whether the new Secretary (if confirmed) would rescind these two “controversial” Interpretations. Both of these documents were very much pro-employee. One widened the agency’s definition of joint employer status, making two entities liable for minimum wage and overtime violations. The independent contractor Interpretation expanded the definition of “employee” to include many more so-called independent contractors.
I think this would be a great idea. When individuals or entities write in for opinions, on a particular set of facts, employers throughout the country can take definitive guidance from the factual scenarios presented and apply those lessons to their facts. That is what employers want—to know how to comply with the law.
Opinion letters help employers do just that.