For years, employers wrestling with thorny wage and hour issues under the Fair Labor Standards Act (“FLSA”) have used the Wage & Hour Division’s (“WHD”) opinion letters for fact-specific guidance. To the extent a particular issue was not addressed by a current opinion letter, the employer could submit a request for an opinion letter and obtain definitive guidance from WHD. Employers who relied on opinion letters were immune from FLSA liability under the Portal Act’s safeharbor provision, which allows an employer to avoid liability for FLSA violations if the employer relied on a written interpretation of the WHD.
WHD recently indicated that it would no longer issue fact-specific opinion letters and that it would instead issue what it refers to as “Administrator’s Interpretation Letters” (“AI”) that will provide general interpretation of wage and hour laws and regulations. The WHD claims that the AI process will help it “provide meaningful and comprehensive guidance and compliance assistance to the broadest number of employers and employees” and “will be a much more efficient and productive use of resources” than the opinion letter process.
Though we do not doubt WHD’s interest in providing comprehensive guidance and in avoiding inefficient processes, there may be other reasons why WHD has decided to forego the fact-specific opinion letter process. In several prior posts, we have discussed the fact that the new WHD seems to have made enforcement investigations its top priority. The elimination of the opinion letter process in favor of the more general (and less helpful) AI process is yet another step in the enforcement direction.
Over time, the elimination of the opinion letter process will weaken the Portal Act’s safeharbor provision related to reliance on opinion letters. The move away from fact-specific opinion letters to AIs is also troubling because the AIs will not be based on a specific factual scenario but instead will be based on WHD’s assumptions about a particular industry or position. For example, the first AI issued by WHD said that mortgage loan officers were not exempt from the FLSA’s overtime requirements. In doing so, the WHD assumed that all mortgage loan officers performed a set of “typical job duties.” This is contrary to the WHD’s own regulations, which make clear that wage and hour issues, particularly questions about an employee’s exempt status, are fact-specific and do not turn on job titles alone. Even within one employer, the courts have long-recognized that employees with the same job title are not necessarily equally exempt or non-exempt because their job duties may be varied.
WHD claims that it will still accept requests for opinion letters from employers but at the same time has indicated that such requests “will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant . . . but without an analysis of the specific facts presented.” Such a response would be of little assistance to employers because locating statutes, regulations, and cases that are generally applicable to a particular issue tends to be the easy part of wage and hour compliance. It is the application of those statutes, regulations, and cases to a particular set of facts that presents challenges to employers.