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Labor Dept. to resume issuing opinion letters

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in Employment Law,Human Resources

Secretary of Labor Alex Acosta is making good on a promise he made during confirmation hearings earlier this year: The U.S. Department of Labor is bringing back opinion letters explaining how it interprets the laws it enforces, most notably the Fair Labor Standards Act.

The Obama Administration stopped issuing opinion letters in 2009, claiming it was not a productive use of DOL resources to “provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations, where a slight difference in the facts may result in a different outcome.”

Since the 1960s, DOL opinion letters have answered real questions from employers and employees about how various employment laws apply to specific sets of facts.

When they were discontinued, employer groups almost immediately began clambering for their return to help understand the DOL’s position on new wage-and-hour issues such as pay for telecommuters and classification of workers in the gig economy.

Now opinion letters are back. Employers or employees can request them through the DOL website at www.dol.gov/whd/opinion.

Note: Although opinion letters do not carry the force of law, courts generally give some deference to them if the facts of a case match the circumstances addressed in a letter.

The DOL will not issue an opinion letter every time one is requested.

Historically, the wait for an opinion letter can be quite lengthy, and might be even longer now, since the position of Wage and Hour Administrator is currently vacant.

In some cases, lower-ranking officials may issue an opinion letter, but these letters may not carry the weight of those authored by the Administrator.

Advice: Confer with your attorney before requesting an opinion letter. You will want to ensure you don’t expose your organization to potential liability by either revealing damaging information or misrepresenting facts in your request.

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