The Biden Administration announced in January that it was withdrawing three opinion letters on various issues under the Fair Labor Standards Act (“FLSA”). The new sheriffs in town said the opinions were “prematurely issued” by the Trump Administration because “they were based on rules that ha[d] not gone into effect. See DOL Opinion Letters 2021-4, 2021-8, and 2021-9 posted (or actually not posted) at https://www.dol.gov/agencies/whd/opinion-letters/search?FLSA.

The opinion letters dealt with tip pools for restaurant workers, independent contractor status of “gig” workers, and working time issues and independent contractor status for truckers.Some suggest that the withdrawal of these opinion letters signals a return to the “radical” policies of the Obama Administration and further cite the recent nomination of David Weil to serve as the next Wage and Hour Administrator—a post he held during the Obama years. Others, particularly labor unions, cheer these developments.

For decades, we have advised federal contractors about how to comply with all manner of acquisition policies with a particular focus on the Service Contract Act, David-Bacon, and FLSA compliance. Throughout our years, we have shied away from jumping into the us versus them mentality that so often drives policies under Republicans and Democrats alike.

Are we chicken? I think not—here’s why. We like predictability and stability for our clients. Pendulum shifts don’t serve anyone well. That’s why generally we like Wage and Hour Administrator opinion letters—they provide guidance that apply the wage and hour laws and regulations  and provide a valuable insight into the long-term arc of wage and hour policy. 

Some have said that opinion letters are simply tools used by business to dodge the law. While it is true that an employer can cite reliance on an opinion letter as a defense to an alleged FLSA violation, DOL by no means is a lap dog for employers regardless of who was in the White House. While one can plausibly argue that any given opinion is infected with the stink of partisan politics, critics let specific letters they find repugnant blind them to the decades of opinions. Sometimes a given opinion will endorse a company’s favored interpretation but at other times opinions favor what some might call an employee-friendly position. In other words, if you take a long-term view of opinion letters, you’ll see an evolving body of interpretation that provides valuable guidance that benefits employers and employees alike.

Sadly, if Dr. Weil is confirmed, we expect that the practice of issuing opinion letters will once again be scrapped as it was during his previous tenure. The irony of this approach is that the Biden Administration’s priorities (and those of the Obama administration) are simply absent from the body of decades of opinion letter guidance. While we hope that the opinion letter process won’t be abandoned, we’re not holding our breath.