A Brief Primer on "How To" Request a DOL Opinion Letter

"Law is the wisdom of the ages wrapped in the opinion of the moment."

-- Drop Dead Diva, TV Series (2009 - 2015)

When an employer and/or employee are unable to find a Fair Labor Standards Act (“FLSA”) regulation that applies to a situation they find themselves in, or when the relevant rules and guidance are ambiguous with regard to that situation, they are again able to request an opinion letter from the Department of Labor (“DOL”) to give further guidance on the matter. Previously, under the Obama Administration, the long-standing practice of issuing official Wage-Hour Opinion Letters was suspended. But it has been revived by the Trump DOL. The revived DOL practice is useful tool because the process allows employers to take affirmative steps towards compliance, and because the letters may be used as a complete defense to back wage liability in litigation if adequately filed and the advice is followed.

DOL asks that those requesting an opinion letter follow certain steps to ensure that the requests are relevant, appropriate, and filled with enough information to act upon. Not all employers are able to request an opinion letter from the DOL. Any employer, representative or third party acting on behalf of the employer may not request an opinion if there is an ongoing investigation or litigation surrounding the controversy. In both events, any request will be denied.

The first step is for the employer to review the existing rules and guidelines to see if any existing guidance is applicable to the situation at hand. The DOL publishes their recent opinion letters in a now  searchable format on their website at https://www.dol.gov/whd/opinion/guidance.htm. Furthermore, the DOL provides a list of Employer Resources that can be used to determine the correct course of action at https://www.dol.gov/whd/foremployers.htm; industry specific guidance can be found at https://www.dol.gov/whd/industry.htm. 

After determining that the existing guidance is insufficient or ambiguous, the employer can move on to the content of the request. The DOL asks for the relevant statutes and regulations relating to the controversy and a description of the facts that may be relevant to the controversy be included. These facts include; the nature of the employer and employee, employee duties, work schedules or other facts that could form the basis of a DOL opinion. They also ask for contact information separate from the facts so that the Wage and Hour division can discuss the request further if need be. However, the DOL asks that requestors not include any personal information beyond the contact information because the opinion letter will be publicly posted on their website. Finally, the DOL requires the requestor’s signature.

Requests can be submitted via mail or email, which can be found on their website at https://www.dol.gov/whd/opinion/opinion-request-1.htm. While a request is free to file, not all requests are answered, and the Wage and Hour Division chooses which requests it responds to.

The Department of Labor has provided more information on opinion letters and the process of requesting an opinion letter at https://www.dol.gov/whd/opinion/.