DOL brings back an old favorite, seeks input on overtime changes

published in McAfee & Taft EmployerLINC | July 3, 2017

By Nathan Whatley

Opinion letters — they’re back!

For more than 70 years, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) provided attorneys and human resources professionals with a very useful resource for determining how to comply with the laws and regulations that WHD enforces – opinion letters.

Previously, a requester could use the opinion letter process to submit a request to the WHD and ask for an opinion on how the law applied to a specified set of facts. Not only would the WHD respond to the requestor, they also published their responses to these questions so that others could use them as guidance. Unfortunately, the DOL ended this program in 2010 and instead began a new practice of issuing broad “Administrative Interpretations” that pronounced the DOL’s views on a given issue. While the previously issued letters remained generally available, the DOL refused to issue any new opinion letters after implementing its new program of issuing the interpretations. Not only did this change in policy deprive employers of a valuable resource for navigating the Fair Labor Standards Act and Family and Medical Leave Act, but it was also widely believed the new approach was a thinly veiled effort by the DOL to influence the development and interpretation of the law without having to engage in the more technically involved and slower process of issuing new regulations or seeking new legislation from Congress.

In late June, Secretary of Labor Alexander Acosta announced that the DOL is reinstating the practice of issuing opinion letters. As noted by Acosta, “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes.” Acosta added, “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

To aid in the use of the reinstated program, the DOL has established a webpage that allows the public to access existing agency letters as well as to submit a request for a new opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued. The program allows employers to submit questions on their own, and also allows employers wishing to maintain anonymity to submit a request through legal counsel.

DOL seeks advice on overtime rules

In a June 2017 announcement, Secretary of Labor Alexander Acosta revealed that the DOL would soon be filing a Request for Information (RFI) regarding federal overtime rules. An RFI is a request for feedback from the general public regarding what is working and what is problematic with regard to a particular set of regulations. Generally, issuing an RFI is the first step of the rulemaking process where, presumably, the comments received would be used in the drafting of new regulations.

The highly publicized changes to the overtime regulations that were set to become effective in 2016 would have raised the minimum salary to qualify for exemption from overtime from $23,660 to $47,476. However, implementation of the new rule was stayed by a federal judge in Texas, who held that the change went beyond the DOL’s authority. Because the agency did not appeal the decision by the deadline, it appears the DOL has decided to revise the regulations rather than defend the rules promoted by the Obama administration.

President Trump’s newly appointed Secretary of Labor has given indications that the DOL’s stance on overtime will be more moderate under his leadership. Acosta stated at his confirmation hearing last spring, “The overtime rule hasn’t been updated since, I believe, 2004. And I think it’s unfortunate that rules that involve dollar values can sometimes go more than a decade and sometimes 15 years without updating … [but] I understand the extreme economic impact that a doubling has in certain parts of the economy.”

Acosta’s comments seem to signal his belief that an increase of some sort of the salary threshold is due. This begs the question of how large an increase. At his confirmation, Acosta suggested that to keep pace with inflation, a more modest jump to $33,000 might be appropriate. An increase in this range is likely to come regardless of the feedback the DOL’s RFI gathers.