Title 29 of the U.S. Code provides direction, regulation, and information regarding issues affecting labor, and includes the Fair Labor Standards Act, which addresses both federal minimum wage issues and the laws regulating overtime pay. The issues addressed under Title 29 are administered, in large part, by the Wage and Hour Division (WHD) of the Department of Labor (DOL).
Since 1947, Title 29 has included a provision (Section 259) that allows employers to request from the Administrator of the WHD a written opinion in which the Administrator would review a submitted fact-specific situation, and provide guidance, approval, or interpretation regarding whether and how the facts fit within the scope of the FLSA. Once an employer received such a written opinion, Section 259 would protect the employer from any action, including a legal action alleging failure to pay minimum wages or overtime compensation, if the employer could prove that its actions were in good faith conformity with and in reliance upon the written response from the Administrator. Such defense, if sufficiently established, would act as a bar to any lawsuit or other proceeding.
Recently, the DOL sent a letter to each attorney and/or employer whose request for such an Opinion Letter is pending with the WHD Administrator. The letter announces a “revised policy” concerning requests for such letters, and states that in the future, such fact-specific letters will be replaced by “Administrator Interpretations,” which will be issued at the Administrator’s discretion. These Interpretations will, according to the form letter, “set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue.” From now on, requests for Opinion Letters will be responded to generally, with references to relevant statutes and regulations, but without any analysis of the facts presented. Individuals and legal representatives will now be forced to rely heavily on the information contained on the DOL’s Compliance Assistance page at http://www.dol.gov/whd/flsa/.
While the DOL believes that this method will be “a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations,” this new method may actually nullify Section 259 by making it more difficult for employers to prove that they relied on a specific opinion from the Administrator. In the absence of a “general interpretation” on the issue, employers may be forced to rely on website information, DOL publications (some of which are grossly outdated), or on opinions from DOL District Offices, which may vary from office to office, typically are not in writing, and do not have the authority of the Administrator’s opinions under Section 259.
Employers who in the past have relied on these Opinion Letters should be aware that the Section 259 defense may no longer be available to them, or may be much more difficult to assert. While an employer may still attempt to affirmatively defend itself by citing Section 259, and by providing testimony or other evidence that it acted in conformance with an administrative practice or enforcement policy of the WHD, it must now do so without the written opinion of the Administrator to assist in that proof. Clearly, employers have lost a valuable tool.