USDOL’s New Opinion
The United States Department of Labor recently announced that it would resume issuing Opinion Letters. This move has re-invigorated criticisms, mostly those that began at the suggestion that the USDOL was considering reinstating these Opinion Letters. It is highly likely that these letters will routinely address matters which arise under the federal Fair Labor Standards Act, which is sometimes referred to as the FLSA.
Many people think that every issue surrounding the FLSA has been resolved, especially when they realize that this law took effect in 1938. Sadly, however, there are new issues surfacing regularly, and an increase in disputes across the nation. Such an environment is one of the catalysts to the reinstatement of the Opinion Letter.
There is a hefty attention paid to FLSA compliance in many industries. The current frequency of disputes, many of which invoke provision in the FLSA, is historically unprecedented. Numerous areas of uncertainty, what many people commonly call “grey areas”, that have existed for years are now being seen in the light for the first time.
Another concern is that this Act is, quite literally, Depression-era legislation. Its application to 21st century workplaces may not be the best solution, and therefore, Opinion Letters now have a place.
Are the criticisms aimed at USDOL Opinion Letters legitimate?
There are many aspersions hurled at Opinion Letters and the departments that utilize them. Thankfully, these complaints fall into three principal categories. These categories mainly deal with the purposes of Opinion Letters and the potential results of Opinion Letters.
“Opinion Letters serve the interests of employers more than employees and consumers.”
This is, quite simply, not true in the slightest. Opinion Letters serve the interests of everyone and anyone who wants a sincere answer as to what the FLSA has to say on a topic. The boundaries, implications, prohibitions, and requirements included in the FLSA, as well as the innumerable situations wherein the might be applied, can be addressed in Opinion Letters. These interpretations are intended for use by anyone concerned or interested, and for decades, many groups have benefited from their issuance. Courts, employers, unions, employees, trade groups, advocacy groups, and many more parties have made use of Opinion Letters in the last three-quarters of a century.
Often, employer-submitted opinion requests can generate employee-favoring replies. The reverse is also true at times. The thing many people miss in this conversation, though, is who the opinion ultimately may “favor” is not the point at all. What matters, and why the Opinion Letters are issued, is to clarify issues that arise under what might seem like, but in no way is, a straightforward code of law. The FLSA aims are best accomplished when everyone affected knows what the rules are that they must operate under.
“USDOL Opinion Letters are a ‘Get out of jail free’ card.”
The real question raised by this analogy is
“What do we do, if a court discovers that an employer violated FLSA rules by doing what the USDOL said could be done, in an official Opinion Letter?”
This is a big “What If?”
We are basically saying that if an employer acts in good faith upon an Opinion delivered by the USDOL, and later, a judge determines that the USDOL was “wrong” to issue such an Opinion, the employer will then be “jailed”.
Thankfully, our Congressional legislators have figured this out. If the employer did act “in good faith, in conformity with, and in reliance upon” that official USDOL Opinion, it would be unjust for the employer to be punished. (See this Code.)They were acting in accordance with what an over-arching department interpreted a federal law to mean.
So, this complaint becomes moot. The problem already has a solution.
“Many Opinion Letters are incorrect.”
This has not happened often. There have not been many Opinion Letters that were substantially and substantively flawed. Often, the complaint and claim that an Opinion Letter is “incorrect” is born out of a policy-preference-driven, or litigation-position-focused, dissatisfaction with the Opinion Letter’s stance, and therefore the USDOL’s stance.
Even if it were true, the USDOL could easily assuage concerns by instituting a thorough review and vetting process on all Opinion Letters, internally, prior to their release to the public.
And if the public truly feels the Opinion Letter is still “wrong” or “incorrect”, there would be nothing stopping concerned citizens from writing directly to the USDOL in an effort to their case.
We’re just saying….
So, The Bottom Line….?
For decades, Opinion Letters have been an important means of communication between the USDOL and the public. They have helped both parties come to a better understanding of what FLSA compliance entails, on a number of issues. Since the discontinuance of the Opinion Letters process, we have seen a dramatic need for their reinstatement in our country’s industrial life. We have been living and working in a state of uncertainty, ambiguity, and unending disputes on interpretations of the FLSA. Everyone should be welcoming measures that are designed to promote clarity and compliance in our workplaces.
And that is the sole purpose of Opinion Letters.