Have you ever filed a request for an “opinion letter” with the U.S. Labor Department? It’s a handy tool that allows you to obtain the agency’s written opinion about whether a particular pay practice would violate the Fair Labor Standards Act ().
One benefit: Asking for an opinion letter can help you dodge the penalty bullet if you’re later hit with an FLSA violation.
For example, the law entitles employees to receive double their unpaid wages if you wrongly denied them overtime pay. But if your organization can show it was acting in good faith, the penalty doesn’t apply.
The key: You must ask for an opinion letter before the employee sues or the Labor Department questions your practice. Waiting until after the fact won’t spare you from paying double.
Recent case: Several fire inspectors sued Hillsborough County because it didn’t pay them for time spent driving to their first work site.
Hillsborough first learned the action might violate the FLSA when a different group of employees sued and the Labor Department said in a phone call that the practice violated the law. Instead of changing the practice right away, the county requested a formal opinion letter.
The inspectors won their lawsuit. But the county asked the court not to impose the penalty, claiming its letter request showed it had acted in good faith.
Not so, said the court. The request came after others had sued on the same issue and Labor officials had advised the county on the phone to pay for the drive time. So, its request wasn’t made in good faith and the penalty was applied. (McGuire v. Hillsborough County, No. 8:05-CV-347, MD FL, 2007)
Note: For details on opinion letters, go to the U.S. Labor Department site: www.dol.gov/esa/whd/opinion/opinion.htm.