Employers can expect to benefit from real-life answers to some real-employer wage-and-hour questions now that the U.S. Department of Labor (DOL) reinstituted 17 Advisory Opinion Letters that had been originally issued in 2009, but subsequently withdrawn during the Obama administration. Such opinion letters provide formal, detailed analysis and answers to employers who pose FLSA compliance questions to the DOL. The opinion letters are published on the DOL website, thus any employer who happens to have the same or a similar compliance issue can benefit from the guidance. While the opinion letters don’t constitute law, employers and their attorneys alike applauded any “peek under the tent” afforded by them in order to preemptively address compliance issues, and sometimes relied upon them defensively, as the reasoned and analyzed legal position (i.e., more than just general policy statements) if an employer found itself in FLSA hot water. I still recall the collective moan that could be heard from the legal and employment community when the Obama administration announced it would stop issuing the opinion letters, but instead would issue broad and non-specific “Administrator Interpretations” that, frankly, didn’t address actual compliance questions. No additional opinion letters were issued during the Obama administration. Now however, you can find all of the DOL opinion letters, including those reinstituted this month, here. Topics in the reinstituted opinion letters cover matters such as whether a specific type of bonus has to be included in an employee’s regular rate of pay, whether overtime exemptions apply in a specific case, and how employers should properly treat “on-call” or “waiting to engage” hours. The majority of the reinstituted opinion letters address interpretation of Section 13(a)(1) of the FLSA – the so-called “administrative exemption” from overtime requirements. Because the Obama administration’s attempt to raise the salary threshold for purposes of analyzing overtime exemptions was blocked, the analysis of these 2009 reinstituted opinion letters, which primarily deal with the duties side of the exemption analysis in any event, should hold. Although the opinion letters are in response to industry discrete and sometimes technical issues, many provide guidance that could apply more broadly than the healthcare, staffing, construction and public safety contexts they were written for.
RELATED ARTICLES
Biden Administration’s COVID-19 Vaccine Initiative: Preparation. Not Panic.
September 17, 2021 | Currents - Employment Law, Employee Health Issues
Use Your Noodle: Assistant Manager Sues Over COVID-19 Related Termination
September 11, 2020 | Currents - Employment Law
Employers Need Not Tolerate HR Professionals Who Encourage Coworkers to File Discrimination Suits
July 31, 2020 | Currents - Employment Law, Employment Discrimination
COVID-19 False Alarm Triggers Tipped Worker Collective Action
July 23, 2020 | Currents - Employment Law
Can Employees Participate in Protests During Their Workday?
July 20, 2020 | Currents - Employment Law
Biden Administration’s COVID-19 Vaccine Initiative: Preparation. Not Panic.
September 17, 2021 | Currents - Employment Law, Employee Health Issues
Use Your Noodle: Assistant Manager Sues Over COVID-19 Related Termination
September 11, 2020 | Currents - Employment Law
Employers Need Not Tolerate HR Professionals Who Encourage Coworkers to File Discrimination Suits
July 31, 2020 | Currents - Employment Law, Employment Discrimination
COVID-19 False Alarm Triggers Tipped Worker Collective Action
July 23, 2020 | Currents - Employment Law
Can Employees Participate in Protests During Their Workday?
July 20, 2020 | Currents - Employment Law
DOL Delivers a Five-Pack of Wage and Hour Opinion Letters
June 30, 2020 | Currents - Employment Law
Here’s a Tip – Restaurant Workers Allege Wage and Hour Violations Amid COVID-19 Pandemic
June 26, 2020 | Currents - Employment Law
As Businesses Reopen, DOL Allows Premium Payments Under the Fluctuating Workweek Method
May 22, 2020 | Currents - Employment Law, Fair Labor Standards Act, Department of Labor
Reopening in Indiana—The Governor Says You’ll Need A Safety Plan
May 5, 2020 | Currents - Employment Law, Employee Health Issues
Court Scorches Employer, Upholds Class Arbitration Decision
April 24, 2020 | Currents - Employment Law, Fair Labor Standards Act
Shutting the Gate: Temporary Worker Excluded From FLSA Collective Action
April 23, 2020 | Currents - Employment Law, Fair Labor Standards Act
Third-Party Biometric Timekeeping Provider Chops Down BIPA Liability
April 14, 2020 | Currents - Employment Law
Salaried-Basis Employees in the World of Temporary COVID-19 Furloughs
April 3, 2020 | Currents - Employment Law, Fair Labor Standards Act, Department of Labor
Los Angeles Will Require COVID-19-Related Paid Sick Leave for Large Employers
March 31, 2020 | Currents - Employment Law, Employee Health Issues, Employee Leave
How Do You Complete or Update I-9s When Your Company is Remote?
March 25, 2020 | Currents - Employment Law
Are COVID-19 Claims Compensable Under Indiana’s Occupational Disease Act?
March 23, 2020 | Currents - Employment Law, Employee Health Issues
California Offers Relief from State WARN Act Requirements
March 18, 2020 | Currents - Employment Law
Employer’s Perseverance Pays Off As District Court Decertifies Disinterested Collective
March 6, 2020 | Currents - Employment Law, Fair Labor Standards Act
No FLSA Friend Requests: Employees With Arbitration Agreements Can’t Get Notice
January 29, 2020 | Currents - Employment Law, Fair Labor Standards Act
New Joint Employment Rule: DOL Clarifies Standard For Liability Under the FLSA
January 17, 2020 | Currents - Employment Law, Fair Labor Standards Act
Third Circuit Schools District Court on Workplace Class Certification
January 8, 2020 | Currents - Employment Law, Fair Labor Standards Act
New DOL Rule Allows Employers to Offer Perks Without Affecting Regular Pay Rate
December 20, 2019 | Currents - Employment Law, Fair Labor Standards Act
No E For Effort: FLSA Conditional Certification Fails Without Supporting Evidence
October 23, 2019 | Currents - Employment Law, Fair Labor Standards Act
Café Managers’ Second Attempt At Conditional Certification Fails
October 22, 2019 | Currents - Employment Law, Fair Labor Standards Act
No Right, Just Rules: Court Lacks Jurisdiction Over Steakhouse Managers’ Claims
October 3, 2019 | Currents - Employment Law, Fair Labor Standards Act
The FLSA Protects Colorado’s Recreational Cannabis Workers
September 25, 2019 | Currents - Employment Law, Fair Labor Standards Act
Another Court Declines to Defer to DOL Guidance on 20 Percent Rule
August 22, 2019 | Currents - Employment Law, Employment Lessons
Don’t Fall Asleep on DOL’s New Guidance for Time Truck Drivers Spend in Sleeper Berth
August 1, 2019 | Currents - Employment Law, Employment Lessons
Recent DOL Guidance Not Entitled to Deference Post-Kisor
July 10, 2019 | Currents - Employment Law, Employment Lessons
F is for Fluctuate: Overtime Pay And The Fluctuating Workweek (WTH is FWW?)
July 27, 2018 | Letter of the Law, Currents - Employment Law
Sixth Circuit Holds Full-Time Presence at Work not Essential Simply Because an Employer Says So
July 20, 2018 | Employment Discrimination, Pregnancy, Currents - Employment Law
E is for Equal Pay: Pay Data Reporting And The Shifting Meaning Of “Equal Work”
July 5, 2018 | Letter of the Law, Currents - Employment Law
Will There Be An Epic Backlash?
June 27, 2018 | Fair Labor Standards Act, Supreme Court Watch, Currents - Employment Law
D is for Drugs: Employee Drug Use and What You Should Know
June 26, 2018 | Letter of the Law, Currents - Employment Law
Letter C: Co-Workers With Criminal Records? Your Workforce May Be More Open-Minded Than You Think
May 24, 2018 | Letter of the Law, Currents - Employment Law
California Supreme Court Ruling to Give More Workers Employee Status
May 2, 2018 | Employment Lessons, Currents - Employment Law
B is for “Bias” - Is Bias The Not-So-New Cause of Discrimination?
April 24, 2018 | Employment Lessons, Letter of the Law, Currents - Employment Law
Philadelphia U. S. District Court Determines Uber Drivers Are Independent Contractors
April 23, 2018 | Fair Labor Standards Act, Currents - Employment Law
Employers, You Can Do This
April 23, 2018 | Employment Lessons, Currents - Employment Law
DOL Issues New Opinion Letters on Wage and Hour Issues – Compensability of Health-Related Rest Breaks
April 18, 2018 | Fair Labor Standards Act, Currents - Employment Law
Know Before You Go: Does the DOL’s New PAID Program Pay Off For Employers?
April 16, 2018 | Fair Labor Standards Act, Currents - Employment Law
Medical Marijuana is Coming to Ohio– What Employers Need to Know
March 23, 2018 | Employment Lessons, Currents - Employment Law
The DOL Just Flipped Its Position on Paying Interns
January 10, 2018 | Employment Lessons, Fair Labor Standards Act, Currents - Employment Law
As Predicted, DOL Proposes Changes to Tip Pool Rule
December 29, 2017 | Employment Discrimination, Employment Lessons, Currents - Employment Law
Employment Visas: Changes to Expect in 2018
December 20, 2017 | Employment Lessons, High Stakes Employment Issues, Currents - Employment Law
Second Circuit Holds that Hearst Interns are not Employees
December 12, 2017 | Fair Labor Standards Act, Currents - Employment Law
Get a Room! Rethink Conducting Employee Reviews Over Lunch
August 25, 2017 | Employment Lessons, Currents - Employment Law
DOL Invites Public Input: Rethinking the Stalled Questions on Overtime
July 26, 2017 | Employment Lessons, Currents - Employment Law
U.S. Department of Labor Abandons Obama Overtime Rule
July 11, 2017 | Employment Lessons, Currents - Employment Law
Trump-Era Immigration Worksite Raid Threats May Bring New Requirements for California Employers
June 2, 2017 | Employment Lessons, Currents - Employment Law
Six Statements That May Mean Your Business Will Keep an Employment Lawyer Busy
June 1, 2017 | Employment Lessons, Currents - Employment Law
OSHA Delays July 1 Electronic Reporting Requirement
May 23, 2017 | Employment Lessons, Currents - Employment Law
Current Administration Considers EEOC and Labor Department Subagency Merger
May 19, 2017 | Affirmative Action, EEOC, Currents - Employment Law
Hiring Teenagers This Summer? Here are 3 Key Considerations
May 17, 2017 | EEOC, Employment Discrimination, Currents - Employment Law
Trump’s Actual Impact on OSHA
May 12, 2017 | Employment Lessons, Currents - Employment Law
House Passes Bill to Legalize Comp Time in the Private Sector
May 8, 2017 | Fair Labor Standards Act, Currents - Employment Law
Lessons Learned: Job Descriptions Do Matter
May 1, 2017 | Employment Discrimination, Employment Lessons, Currents - Employment Law
Lesson: Don’t Underestimate Court’s Ability to Change Its Mind
April 6, 2017 | Employment Lessons, Fair Labor Standards Act, Currents - Employment Law
Your Questions About Ohio’s New Gun Law Answered
April 4, 2017 | Employment Lessons, Currents - Employment Law
Paid Leave American-Style: “I Get Mine, But You Can’t Have Yours!”
March 31, 2017 | Employee Leave, Currents - Employment Law
Update on Trump’s Line-Up for DOL and Supreme Court
March 28, 2017 | Employment Lessons, Currents - Employment Law
Easy Come, Easy Go: Appeals Court Reverses $2.6 Million Award in ADA Case
March 24, 2017 | Employment Lessons, Currents - Employment Law
Mugshots Gone Viral: Internet Clickbait is a Hiring Manager’s Minefield
March 16, 2017 | Employment Discrimination, Currents - Employment Law
Unwise Old Sayings? Watch Out For Stereotypes That Might Trigger An Age Discrimination Lawsuit
March 9, 2017 | Employment Discrimination, Currents - Employment Law
Hotel California Checks Out of State Forum Selection Clauses
February 13, 2017 | Employment Lessons, Currents - Employment Law
2016: EEOC Charges Keep Climbing
February 8, 2017 | EEOC, Currents - Employment Law
EEOC’s Latest Guidance On Mental Health Accommodations Adds Little
January 31, 2017 | EEOC, Currents - Employment Law
Survey Says: About Half of Employers Offering Paid Sick Leave
January 30, 2017 | Employment Lessons, Currents - Employment Law
Drill Deeper Than “Fit” as Reason For Termination
January 26, 2017 | Employment Lessons, Currents - Employment Law
The DOL’s Final Rule on Life Support?
December 30, 2016 | Fair Labor Standards Act, Currents - Employment Law
Ohio Employers May Soon See Employees Packing Heat in Their Cars
December 15, 2016 | Employment Lessons, Currents - Employment Law
December 1 Overtime Rule Blocked
November 22, 2016 | Fair Labor Standards Act, Currents - Employment Law
Using an Employee’s Social Media Posts to Prove Laziness? Think Again
November 21, 2016 | Employment Lessons, Fair Labor Standards Act, Currents - Employment Law
The World According to Trump: Revenge of the Pen – Overturning Obama’s Executive Orders and Employment Policies
November 16, 2016 | Fair Labor Standards Act, Currents - Employment Law
The World According to Trump: A Prologue
November 14, 2016 | High Stakes Employment Issues, Currents - Employment Law
Cook County, Illinois, Approves Increased Minimum Wage for Suburban Workers Beginning Next Year
October 28, 2016 | Employment Lessons, Currents - Employment Law
Down to the Wire: DOL’s “Blacklisting Rule” Enjoined
October 25, 2016 | Traditional Labor, Currents - Employment Law
Overtime Rules Challenge - Business Groups and States Seek Expedited Relief
October 17, 2016 | Fair Labor Standards Act, Currents - Employment Law
No Matter Who Becomes President, Expect More Change in National Labor and Employment Policy
October 12, 2016 | Employment Lessons, Currents - Employment Law
Oklahoma and U.S. DOL Agree to Tag-Team Worker Misclassification Initiatives
September 16, 2016 | Fair Labor Standards Act, Currents - Employment Law
Employee Misclassification as Independent Contractor
September 12, 2016 | Traditional Labor, Currents - Employment Law
New Overtime Rules: All That Glitters Is Not Gold
May 20, 2016 | Fair Labor Standards Act, Currents - Employment Law
UPDATED: DOL Unveils New Overtime Regulations
May 18, 2016 | Fair Labor Standards Act, Currents - Employment Law
Department of Labor to Issue Finalized White Collar Exemption Rule on Wednesday, May 18
May 17, 2016 | Fair Labor Standards Act, Currents - Employment Law
11th Hour Questions about DOL’s Overtime Rules
April 19, 2016 | Fair Labor Standards Act, Currents - Employment Law
EMPLOYERS BEWARE! - DOL’S FINAL OVERTIME RULE COMING SOON!
March 23, 2016 | Fair Labor Standards Act, Currents - Employment Law
Meowing Dogs and Barking Cats: Supreme Court Grants Certiorari to Determine Service Advisors’ Eligibility for Overtime Pay
January 22, 2016 | Fair Labor Standards Act, Currents - Employment Law
Friend or Foe?: Terminated HR Director Can Bring Retaliation Case, Court Says
January 4, 2016 | Fair Labor Standards Act, Currents - Employment Law
Wage Wars: The Plaintiff’s Bar Awakens
December 4, 2015 | Fair Labor Standards Act, Currents - Employment Law
Comment Period for Controversial Overtime Rule Closes Soon
September 1, 2015 | Fair Labor Standards Act, Currents - Employment Law
DOL TO CONSIDER RULE ON PORTABLE ELECTRONIC DEVICES OUTSIDE OF WORKING HOURS
August 24, 2015 | Social Media and Technology, Currents - Employment Law
Employees May Soon Have Something To Lose In FLSA Lawsuits
August 13, 2015 | Fair Labor Standards Act, Currents - Employment Law
DOL Cracks Down on Definition of Independent Contractors
July 15, 2015 | Fair Labor Standards Act, Currents - Employment Law
Employers Won’t “Like” Ruling Allowing Class Action Notifications via Social Media
May 6, 2015 | Social Media and Technology, Currents - Employment Law
Caveat to the FMLA Final Rule on Same-Sex Spouses: Not Yet
April 14, 2015 | Employment Discrimination, Currents - Employment Law
FMLA Final Rule: 'Spouse' Means Same-Sex Spouse (Even in Alabama)
February 24, 2015 | Employee Health Issues, Employment Discrimination, Currents - Employment Law
Signing Section 2 of I-9 Forms Can Get You in Trouble!
February 12, 2015 | Employment Lessons, Currents - Employment Law
Not So Fast: Parties Cannot Impose Confidentiality Restrictions on Judicially Approved FLSA Settlements
January 29, 2015 | Fair Labor Standards Act, Currents - Employment Law
X-Rays Shipped Out of State Help Employee Keep Issue of FLSA Coverage Alive
January 26, 2015 | Letter of the Law, Currents - Employment Law
Unanimous Supreme Court Denies Compensation for Time Spent in Security Checks
December 11, 2014 | Fair Labor Standards Act, Currents - Employment Law
The Employer Mandate Is Almost Here. Is Your Company Ready?
December 5, 2014 | Employee Health Issues, Currents - Employment Law
Don’t Disregard Your Employees’ Rights, Even If They’re Strippers
November 19, 2014 | Fair Labor Standards Act, Currents - Employment Law
FMLA Certifications: When “Unknown” and “Probably” Aren’t Enough
September 15, 2014 | Employee Health Issues, Currents - Employment Law
An Employer’s Liability Under The FLSA Can Be High
July 31, 2014 | Fair Labor Standards Act, Currents - Employment Law
Collective and Class Actions: Interns, Assistant Managers – and their Lawyers!
July 18, 2014 | Fair Labor Standards Act, Letter of the Law, Currents - Employment Law
Revisiting Judicial Approval of Fair Labor Standards Act Settlements
June 19, 2014 | Fair Labor Standards Act, Currents - Employment Law
Apple Employees Survive Summary Judgment in FLSA Bag Check Class Action
June 4, 2014 | Fair Labor Standards Act, Currents - Employment Law
Act One in Unpaid Intern Appeal Has Begun
April 8, 2014 | Fair Labor Standards Act, Currents - Employment Law
Supreme Court Rules That Donning And Doffing Time May Not Be Compensable
January 29, 2014 | Fair Labor Standards Act, Currents - Employment Law
The Dangers of Employees Taking A “Working Lunch”
January 2, 2014 | Fair Labor Standards Act, Currents - Employment Law
Commission or Piece-Rate? The Distinction Is Significant for FLSA Purposes
November 22, 2013 | Fair Labor Standards Act, Currents - Employment Law
Federal Court Denies Class Certification, Preemptively Denies FLSA Collective Action – Class Members’ Experiences Too Varied
October 15, 2013 | Fair Labor Standards Act, Currents - Employment Law
Does the DOL’s Letter on Law Students Signal a Broader Acceptance of Intern Arrangements?
September 30, 2013 | Traditional Labor, Currents - Employment Law
Home Health Care Workers Now Protected Under the FLSA
September 18, 2013 | Fair Labor Standards Act, Currents - Employment Law
Judicial Approval No More? The Days of Judicially Scrutinized FLSA Settlements May Be Drawing To a Close
March 14, 2013 | Fair Labor Standards Act, Currents - Employment Law
U.S. Supreme Court Agrees to Clarify FLSA’s Exemption for Donning and Doffing Time
February 21, 2013 | Fair Labor Standards Act, Currents - Employment Law
The FLSA Also Requires Employers To Provide Private Lactation Break Rooms
February 1, 2013 | Employee Health Issues, Currents - Employment Law
Department of Labor Secretary Solis Resigns
January 11, 2013 | Fair Labor Standards Act, Currents - Employment Law
8th Circuit Upholds Class Waivers in FLSA Cases
January 9, 2013 | Fair Labor Standards Act, Currents - Employment Law
When Numbers Count
December 19, 2012 | Fair Labor Standards Act, Currents - Employment Law
Losing A Fair Labor Standards Act Lawsuit Can Be Costly
November 8, 2012 | Fair Labor Standards Act, Currents - Employment Law
Federal Court In Washington Rules That Sales Agent Is A Contractor, Not An Employee
September 28, 2012 | Fair Labor Standards Act, Currents - Employment Law
DOL Issues WARN Guidance in Light of Upcoming Sequestration Measures
August 1, 2012 | Traditional Labor, Currents - Employment Law
DOL Decision Supports Expansion of SOX Whistleblower Protections To Contractors of Publicly Traded Companies
June 18, 2012 | Employment Discrimination, Currents - Employment Law
RELATED PRACTICE AREAS
Subscribe
Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.
View Subscription Center