An Early Groundhog Day: DOL Reissues 17 Opinion Letters That Had Been Withdrawn In 2009

On January 5, 2018, the U.S. Department of Labor (DOL) reissued 17 previously withdrawn opinion letters addressing a wide range of topics under the Fair Labor Standards Act (FLSA). The former acting administrator of the DOL's Wage and Hour Division (WHD) signed 15 of the 17 opinion letters in January of 2009, during the final days of the Bush administration. The Team Leader of what was then the Fair Labor Standards Team of the Office of Enforcement Policy of WHD signed the remaining two opinion letters. Three other withdrawn 2009 opinion letters—FLSA 2009-22, FLSA 2009-23, and FLSA 2009-24—remain withdrawn.

The Obama administration withdrew these opinion letters "for further consideration by the Wage and Hour Division" on March 2, 2009, and stated that it would "provide a further response in the near future," but it never did. The Obama administration was able to withdraw these letters because they were not "placed in the mail for delivery" even though they had been signed before the change in administrations.

Opinion letters address specific questions submitted to the DOL/WHD and constitute an important form of guidance for employers and employees with respect to applying the requirements of the FLSA and other laws to their workplaces. The Obama administration discontinued the longstanding practice of issuing opinion letters and did not issue any new ones. Instead, the Obama administration issued a handful of general guidance documents that it referred to as "Administrator's Interpretations." U.S. Secretary of Labor Alexander Acosta withdrew two of those Administrator's Interpretations shortly after his appointment in 2017.

In June 2017, Secretary Acosta announced that he would reinstate the practice of issuing opinion letters. As we reported at that time, it was unclear when that practice actually would be reinstated, since the WHD did not yet have an administrator. Notably, the WHD still is without an administrator, as the Senate failed to approve a number of nominees before it adjourned in late December 2017, including the Wage and Hour administrator nominee Cheryl Stanton, a former Ogletree Deakins shareholder.

The reissued opinion letters all are signed by WHD Acting Administrator Bryan L. Jarrett. Each opinion letter states that it is a response from the requestor to reissue a previously withdrawn 2009 opinion letter. Without any explanation other than it "further analyzed" each withdrawn letter, the acting administrator simply...

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