As some of you may recall from my 3/9/09 post -- DOL Releases New FLSA Opinions from Bush Era Including Letters Addressing Mandatory Use of Vacation or PTO During Temporary Shutdowns -- on the last day of the Bush Administration, the Department of Labor attempted to issue 36 FLSA Administrator Opinion Letters, but only about half them were properly post-marked before the change in administrations. As a result, the Obama Administration published all of the letters on the DOL website, but indicated that it was withdrawing and was reserving the right to review, clarify and even reverse the 18 letters which had not been mailed before the Obama inauguration. (These letters were marked on the website with an asterix). However, the Obama Administration has not issued any FLSA Opinion Letters since that time and last week announced that it would not be issuing any more FLSA Opinion Letters for the foreseeable future (or revising any of the 19 Opinion Letters it previously withdrew pending review). Rather, it will instead be issuing Administrator Interpretations -- general statements of policy applicable to particular industries or involving particular rules:
In order to provide meaningful and comprehensive guidance and compliance assistance to the broadest number of employers and employees, the Wage and Hour Administrator will issue Administrator Interpretations when determined, in the Administrator's discretion, that further clarity regarding the proper interpretation of a statutory or regulatory issue is appropriate. Administrator Interpretations will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue. Guidance in this form will be useful in clarifying the law as it relates to an entire industry, a category of employees, or to all employees. The Administrator believes that this 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, where a slight difference in the assumed facts may result in a different outcome. Requests for opinion letters generally will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented. In addition, requests for opinion letters will be retained for purposes of the Administrator's ongoing assessment of what issues might need further interpretive guidance.
In the past, FLSA Opinion letters involved the FLSA Administrator's detailed legal analysis of real questions by real employers and these letters could be relied upon as a reasoned legal position of the DOL in an employer was later investigated by the DOL or sued in court. General statements of policy are typically entitled to less judicial deference.
All that being said, the first Administrative Interpretation concerns the exempt status of Mortgage Loan Officers. In doing so, the Obama DOL has withdrawn prior Opinion Letters finding mortgage loan officers to be exempt from overtime wages.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
