The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently reinstated its traditional practice of issuing informal opinion letters to provide compliance guidance on issues arising under the laws enforced by WHD, and in particular the Fair Labor Standards Act (FLSA). Opinion letters were discontinued during the Obama Administration in lieu of broad “Administrator Interpretations” which essentially espoused the policy views of former Wage and Hour Administrator David Weil.
Importantly, although a Wage and Hour opinion letter can provide a defense to an alleged FLSA violation, the employer must be able to show that it acted in good faith “in conformity” with the circumstances described in the letter. A recent ruling by the U.S. Court of Appeals for the Sixth Circuit, however, underscores the limitations of using an opinion letter to defend against an alleged FLSA violation.
In Perry v. Randstad General Partner (US) LLC, No. 16-1010 (6th Cir. November 20, 2017), the appeals court upheld a claim that the employer had improperly classified some of its employees as FLSA-exempt. Although the employer relied on a WHD opinion letter, the court found that it could not be used as a defense because the employer’s situation was too different from the specific factual scenario addressed in the opinion letter.
A copy of the Sixth Circuit’s decision in Perry is available here.
Members of the Center for Workplace Compliance (CWC) can read more here.