By Chance Hill
On January 5, 2018, the U.S. Department of Labor (DOL) reissued 17 previously withdrawn opinion letters addressing a wide variety of topics under the Fair Labor Standards Act (FLSA). Such letters respond to specific questions submitted to the DOL’s Wage and Hour Division (WHD) and constitute an important form of guidance for employers and employees regarding the application of FLSA requirements and other laws to their workplaces. Employers may be able to use opinion letters for their affirmative defenses and receive deference by the courts if employers act “in conformity with” an opinion letter and in “good faith,” according to the Portal-to-Portal Act of 1947. The aforementioned 17 letters concerned inquiries ranging from questions about the exempt status of civilian helicopter pilots under Section 13(a)(1) of the FLSA to whether bonuses should be included in calculating employees’ regular rates pursuant to Section 7(e) of the FLSA.
The Obama Administration had withdrawn these opinion letters and discontinued the longstanding practice of issuing such letters while in office. (Instead, the Obama Administration issued a handful of documents that it referred to as “Administrator’s Interpretations.”) In his statement regarding these 17 opinion letters, the Trump Administration’s WHD Acting Administrator Bryan L. Jarrett reissued “the verbatim text” of each withdrawn opinion letter and asserted that it “is an official statement of WHD policy and an official ruling for the purposes of the Portal-to-Portal Act, 29 U.S.C. § 259.”