WORKPLACE LAW LOWDOWN | Opinion Letters Are Back
The United States Department of Labor (“DOL”) announced on Tuesday, June 27, 2017, “Opinion letters are back.”
Opinion letters are “official written opinions” issued by the DOL Wage and Hour Division. They were the method the DOL used for more than 70 years to publicize its interpretation of the laws that the Wage and Hour Division enforces, such as the Fair Labor Standards Act which regulates minimum wage and overtime pay. The DOL suspended its practice of issuing opinion letters during the Obama administration in favor of Administrator’s Interpretations (“AI”). The DOL has now withdrawn two Obama administration Administrator’s Interpretations, AI 2015-1 and AI 2016-1, and reinstated its practice of issuing opinion letters.
AI 2015-1 was issued on July 15, 2015. It explained DOL’s interpretation of employees vs. independent contractors. The interpretation focused on “economic realities” and took an expansive view of employees, stating that “most workers are employees” under the Fair Labor Standards Act. AI 2016-1 was issued on January 20, 2016. It explained DOL’s interpretation of joint employers, i.e., work arrangements in which two different employers exercised control over the same employees.
The DOL has established a webpage where the public can look for published opinion letters and/or submit a request for an opinion letter: https://www.dol.gov/whd/opinion/. Employers wishing to inquire anonymously can do so by submitting a request for an opinion through counsel.