The United States Department of Labor (“DOL”) announced on June 27, 2017 that it will reinstate issuance of Opinion Letters by its Wage and Hour Division to assist employers and employees in interpreting laws such as the Family and Medical Leave Act (“FMLA”) and the Fair Labor Standards Act (“FLSA”). These opinion letters will replace the more general Administrator Interpretations (“Interpretations”) that have been used by the DOL since 2010.
This is a welcome change for employers as Opinion Letters provide much more specific feedback regarding an employer’s employment practices. The previously used Interpretations set forth general guidance related to an entire industry, a category of employees, or all employees. Given the general nature of these Interpretations, they provided employers with little to rely on when it came to the details of their employment practices. Opinion Letters, however, will be official written opinions from the DOL Wage and Hour Division on how the law applies to the specific circumstances set forth by the requesting employer or employee.
These Opinion Letters addressing companies’ specific employment practices may provide a tool for employers to insulate themselves from liability under both the FLSA and FMLA. There is a complete defense to liability under the FLSA if an employer can plead and prove it acted “in good faith conformity with and in reliance on any written administrative regulation, order, ruling approval, or interpretation” of the Wage and Hour Division. 29 U.S.C. § 259(a). Furthermore, reliance on an Opinion Letter may prevent double liquidated damages under both the FLSA and FMLA as it may demonstrate the employer acted in good faith and that it had reasonable grounds for believing that its act or omission was not in violation of the law. 29 U.S.C. § 260; 29 U.S.C. § 2617(a)(1)(A)(iii).
While employers may be able to reasonably rely on opinion letters addressing similar factual circumstances, it is best for purposes of establishing these FLSA and FMLA defenses that the employer request and obtain an Opinion Letter regarding the employer’s specific practice in question.
If you are interested in obtaining an Opinion Letter from the DOL or have any questions please contact your labor and employment counsel at Smith, Gambrell & Russell.
This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice. If you have any questions regarding these issues, please contact your Labor and Employment Counsel at Smith, Gambrell & Russell, LLP.