Recently, over on the Acroprint website, I published a newsletter article outlining three recent changes implemented at the US Department of Labor (DOL):
- Withdrawal of the 2015 Administrator Interpretation on the classification of workers as independent contractors;
- Withdrawal of the 2016 Administrator Interpretation on joint employment;
- Announcement of plans to issue a Request for Information (RFI) regarding an update to the still-pending 2016 overtime threshold rule.
Since the publication of that article, there have been a few additional developments at the DOL that should be of interest to employers.
The Overtime Rule: Request for Information
As promised, Secretary Acosta has sent the RFI to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. This is one of the final steps before the RFI will be published in the Federal Register and opened for comment by the public.
Naturally, there’s speculation about what information the RFI will be requesting. (Of course, right?) Here’s what most people “in the know” are saying:
- For employers who did change their operations or adjust their pay in anticipation of the previously-proposed rule (the one that would have raised the overtime threshold to $913 per week, and has been held up in the courts since last year): the DOL will want to know what the economic impact of those changes has been.
- For employers who didn’t make any changes: the DOL will want to know what they think the consequences might have been, had the rule taken effect and they’d been forced to make changes.
It should be interesting to see what happens!
Episode VI: Return of the Opinion Letters
Long, long ago in a galaxy far, far away, the DOL used to issue things called “Opinion Letters.” The way it would work was this: anyone who had a question about the specific application of a labor law, such as the Fair Labor Standards Act (FLSA) or the Family Medical Leave Act (FMLA), could submit a request to the DOL for guidance. If a DOL administrator decided their question was interesting, had broad enough application, or otherwise caught their attention, they would issue an “Opinion Letter.”
This document would give insight into how the DOL interpreted the provisions of the applicable laws and provide guidance to the questioner.
The pros and cons of Opinion Letters
On the good side, if an employer’s question was selected and they got an answer, they would know exactly what they should do to stay on the DOL’s good side. Employees would have a better idea if they were really entitled to back pay or other redress. And lawyers could more confidently advise their clients how to proceed.
On the down side, each Opinion Letter could be highly specific to the individual circumstances of that one case. Other people reading the Opinion Letter might be tempted to rely on its guidance but unless their circumstances were identical to those of the questioner, that reliance might be misplaced.
And, of course, these letters were (as the name states) simply opinions of DOL administrators. It was always possible that a judge might interpret the law differently. But if that happened, the employer could possibly still avoid liability by invoking “good faith” in other words, they asked for and got guidance from the DOL and acted in good faith in relying on that guidance.
Back in 2010, the DOL stopped issuing Opinion Letters. Their reasoning was that because these letters were based on such specific sets of circumstances, the DOL administrators were spending a lot of time responding to issues that might only apply to one specific set of circumstances at one specific employer. And if other employers read the opinion and decided to apply it to their situation, they could be steered wrong if their circumstances were different (even if the differences appeared to be only minor).
So they started focusing on issuing “Administrator Interpretations” instead.
Administrator Interpretations are designed to be more general in nature, and to give everyone an overview of the DOL’s take on a law or regulation, rather than responding to a specific question from a specific person or company.
So, for instance, in the recently withdrawn Interpretation on worker classification, the DOL discussed the various general criteria they use to determine if an worker should be classified as an employee or can be considered an independent contractor (IC). The Interpretation stated that it was the DOL’s position that the majority of workers should probably be considered employees. So employers were on notice that the DOL was going to be taking a hard look at any job positions they classified as an IC, but they didn’t necessarily have detailed information about whether a specific job should be considered an employee or an IC. For that, they’d have to consult with their own labor law attorney and do a fact-specific analysis of each job classification.
While people found the Administrator Interpretations to be helpful in some ways, they also missed the specificity of the Opinion Letters, and they still wanted the ability to ask detailed questions and (possibly) get a detailed answer.
Back to the Future
Just within the last few days, the DOL announced that they’re bringing back Opinion Letters.
If you’re interested and you have a fact-specific question to ask regarding the application of labor law, you can submit an Opinion Letter request on this web page.
A couple of things to note: first, you should review existing guidance first to find out if your question has already been answered sufficiently. They provide links to previously published Opinion Letters and Administrator Interpretations, fact sheets, FAQs, elaws Advisors, and whole pile of additional informational materials. (I know, I know, that’s a lot of work, and the reason you’re asking the question is that you don’t want to wade through all those documents in the first place. But check anyway.)
And second, please review the section entitled What to Include in Your Opinion Letter Request and make sure you include all that stuff! Yes, it’s wonderful to be a free spirit unencumbered by bureaucracy and all that, but in this case you also need to be able to follow instructions or you won’t even have a chance of getting an answer.
It’s important to note that, with the return of the Opinion Letter, Administrator Interpretations aren’t going away. If you read the fine print at the bottom of the Opinion Letter request page, you’ll see this: “The Wage and Hour Division exercises discretion in determining which requests for opinion letters will be responded to and the appropriate form of guidance to be issued in response (i.e., Administrator-signed opinion letter, non-Administrator opinion letter, Administrator Interpretation).”
In other words, you may get an Opinion Letter, you may get an Administrator Interpretation, or you may get no answer at all. But at least you have the ability to ask!