The United States Department of Labor (DOL) recently revived 17 previously withdrawn opinion letters concerning a wide range of topics under the Fair Labor Standards Act (FLSA). These opinion letters, each of which respond to fact-specific questions and issues presented by employers, were withdrawn under the Obama administration. Moreover, the practice of issuing opinion letters was halted altogether under the Obama administration in favor of broad administrator interpretations, a move that was widely viewed as anti-employer.
Though the revived opinion letters do not change current FLSA statutes or regulations, they may assist employers in several ways.
First, employers who are facing similar workplace circumstances can obtain helpful guidance and interpretations of the law from the opinion letters.
Next, the opinion letters provide a “safe harbor” defense for employers facing an FLSA claim. Where an employer “pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [DOL], or any [relevant] administrative practice or enforcement policy of such agency,” the employer's reliance on the opinion letter could act as a complete bar to liability under the FLSA.
Finally, employers can reduce or avoid liquidated damages if the employer reasonably relied “in good faith” on an opinion letter, believing its actions were not in violation of the FLSA.
The revived opinion letters have been renumbered FLSA2018-1 through FLSA2018-17 and can be accessed on the DOL's website. The subjects addressed in each letter vary, such as whether certain job bonuses must be included in an individual's regular rate of pay (FLSA2018-5, FLSA2018-9, and FLSA2018-11); the compensability of “on-call” time (FLSA2018-1); and deductions from wages (FLSA2018-14 and FLSA2018-7). Though each opinion letter deals with a fact-specific scenario, employers are still able to gather useful guidance.
For example, opinion letter FLSA2018-1 analyzes whether certain on-call time is compensable. The opinion letter states that “the five-minute response time [required by the employer] is not a significant hindrance” on the employee's personal time because “travel within city limits [in a small town of 4,000 people] takes only a few minutes.” Further, the employer “does not discipline employees who fail to respond within five minutes.”
The opinion letter concluded that this arrangement was not “such a hindrance” to the employee as to convert his or her on-call time into hours worked under the FLSA. The employee could travel anywhere within the city and still be able to respond to a call with relative ease, effectively using on-call time for personal purposes.
From this example, it is clear that if employers want to avoid converting on-call time into compensable hours worked under the FLSA, they should structure on-call arrangements to maximize employees' ability to use the on-call time for personal purposes.
The revival of these opinion letters is one of many steps by the Trump administration to effectuate employer-friendly changes within the DOL Wage and Hour Division (WHD). Labor Secretary Acosta previously announced that he would reinstate the practice of issuing opinion letters, although it is unclear when this practice will resume as President Trump's nomination for the WHD administrator has been held up in the Senate.
Should you have any questions regarding the revived opinion letters, or any other wage and hour issues, please feel free to contact John McKenzie, Katie Basch or any other K|W|W attorney.