DOL Brings Back Opinion Letters

The US Department of Labor (DOL) is reviving opinion letters.

“Opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance,” Deputy Secretary of Labor Keith Sonderling said. “Launching this program is part of our broader effort to empower the public with the information they need to understand and comply with the laws the department enforces.”

Under President Obama, the DOL abandoned its opinion letter program in favor of “administrator interpretations” that offered broad guidance rather than specific, targeted opinions. When President Trump took office in 2016, the DOL revived the opinion letter program and issued dozens of new opinions. Under the Biden administration, the DOL put out only eight opinion letters. Now, under the second Trump administration, the DOL is looking to expand its reach.

The DOL said its opinion letters will provide official written interpretations from its five enforcement agencies – the Wage and Hour Division (WHD), the Occupational Safety and Health Administration (OSHA), the Employee Benefits Security Administration (EBSA), the Veterans’ Employment and Training Service and the Mine Safety and Health Administration – explaining how laws apply to specific factual circumstances presented by individuals or organizations.

The DOL has added a new page to its website, dol.gov/opinion-letters, where visitors can view old opinion letters and request an opinion letter of their own.

By addressing real-world questions, the opinion letters will “promote clarity consistency and transparency in the application of federal labor standards,” the DOL added.

Although they do not carry the same legal weight as notice-and-comment regulations, opinion letters can help limit employers’ liability in the event of a lawsuit or DOL investigation.

For example, if an employer requests an opinion letter from the WHD, provides it with all the pertinent facts regarding its particular situation, receives an opinion letter from the WHD and then follows the opinion letter in good faith, it can be shielded from liability for Fair Labor Standards Act (FLSA) minimum wage and/or overtime violations involving the practices described in its letter.

Even if they had not requested an opinion letter themselves, other employers that have identical fact patterns also can be shielded from liability if they follow an opinion letter. However, an employer should exercise caution before relying on another employer’s opinion letter because any variation in the fact pattern can nullify its defense.