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The Fair Labor Standard Act (FLSA) isn’t “standard” and the Family Medical Leave Act (FMLA) is definitely not intuitive. To comply with these laws, employers are always in search of guidance on how they apply to their unique workplace situations. It’s particularly helpful to employers have insight from the Department of Labor (DOL), the government agency that enforces these laws.

For many years, employers had that guidance in the form of DOL opinions letters. In their opinion letters, the DOL responded to fact-based questions posed by employers about the FLSA and the FMLA. The opinion letters addressed the type of practical issues that regularly come up for employers trying to apply these rules to an ever changing workplace.

DOL opinion letters, employers missed you

In 2010, however, the DOL under the Obama administration abandoned use of opinion letters replacing them with administrative interpretations (AIs). Rather than responding to employer questions, the AIs were essentially declarations of the administration’s position on various FLSA and FMLA issues. The AIs did little to address employers’ practical questions about day-to-day administration of the FLSA and FMLA. From 2010 to 2016, the DOL issued a total of just seven AIs on the FLSA and two on the FMLA – compared to the dozen or more opinion letters issued annually by prior administrations. Unfortunately, for many this shift seemed symbolic of the administration’s attitude to the employer community. But now, times have changed.

Welcome back, DOL opinion letters!

The new Secretary of Labor Alex Acosta announced on June 27, 2017, that the DOL will resume issuing opinion letters. The DOL stated that the “action allows the department’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.” This is good news for employers. Not only does it provide employers with another resource for understanding the FLSA and FMLA, but it signals recognition by the DOL that employers want and need help in complying with these complicated and non-standard laws.

For employers interested in seeking DOL guidance, the agency has a website that explains what to include in a request for an opinion letter, where to submit the request, and where to review existing guidance.

Of course, the DOL can’t respond to every question and their responses can take some time, so, as always, your trusted employment counsel will remain a valuable resource.
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