It was recently announced by the U.S. Secretary of Labor Alexander Acosta that the U.S. Department of Labor will reinstate the long-standing practice of issuing opinion letters regarding the application of the Fair Labor Standards Act (FLSA) of the Family Medical Leave Act (FMLA). For approximately 50 years, opinion letters were issued by the department in fact-specific situations where some uncertainty existed on how to apply the FLSA. Opinion letters provided a mechanism for employers and employees to ask officials of the department to provide an official written explanation of what the FLSA or FMLA requires in a specific factual situation. The department ceased that practice of issuing opinion letters during the Obama administration and replaced them with Administrator Interpretations (AIs), which only provided general guidance regarding the application of the law.
Why the Department Eliminated Opinion Letters in 2010
The department’s decision in 2010 to eliminate opinion letters benefited employees because employers often relied upon opinion letters to assert a defense that their violation of the FLSA was not willful or that the violation was made in good-faith. If successful in raising the good-faith defense, an employer could shield themselves from exposure to the liquidated (double) damages provision of the FLSA. Now, employers will once again be permitted to argue that their violation of the FLSA was made in good-faith, due to their reliance on an opinion letter that may, or may not, apply to the case at hand.
Historically, many Republican administrations have also utilized the department’s opinion letters to short-circuit the normal approval process for administrative regulation, which requires public comment.