
Sharon Block is a Professor of Practice and the Executive Director of the Center for Labor and a Just Economy at Harvard Law School.
In his hearing yesterday before the Senate Appropriations Committee, Labor Secretary Alex Acosta announced that DOL’s Wage and Hour Division (WHD) will reinstate the practice of providing “opinion letters.” These letters are legal interpretations of the laws that WHD administers, issued on behalf of the Secretary, and in response to inquiries from private parties about how the law applies to specific factual situations. Parties who receive an opinion letter and follow the advice contained therein are shielded from liability if their conduct is challenged in court, even if the court disagrees with WHD’s conclusions contained in the letter. In 2010, the Obama Administration ended the practice of issuing these letters.
According to Secretary Acosta, “reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes.” This is one view of the purpose and effect of the opinion letter program. I would like to offer a different, less rosy opinion of opinion letters. In my view, opinion letters often function as a means to enable employers to buy absolution for questionable behavior under the critical worker protection statutes that WHD is supposed to enforce.
As several management lawyers recently described to Bloomberg reporter Ben Penn, employers pay their lawyers to talk to WHD officials in advance of submitting opinion letter requests. This practice allows management lawyers to ensure that they only formally submit questions that will yield answers that are beneficial for their clients. The lawyers then aggressively follow up to ensure that their requests are at the top of the pile for response. The end result is that the opinion letter program is skewed toward management-friendly opinions.
Moreover, in a DOL led by officials more likely to interpret the law in favor of employers – as the Acosta DOL is expected to be – the likelihood of securing a favorable opinion is even higher. Of course, employers run the risk that their requests will yield answers that they don’t like – when it is functioning at its best, the opinion letter program can create a deterrent to unlawful behavior that avoids the delay and expense of litigation. I am not alone, however, in my belief that the opinion letter program is designed more to provide legal cover than to educate the public. Upon today’s announcement, Tammy McCutcheon, former WHD Administrator in the Bush Administration, affirmed what these letters are really about. She tweeted, “Want a complete defense against FLSA liability? Get a DOL opinion letter, which DOL is set to begin issuing again.” I did not notice anyone extolling the virtue of gaining a deeper understanding of the intricacies of the FLSA as a result of Acosta’s reinstatement of the program.
The best evidence of the disingenuous nature of the opinion letter program is that there is a better way to serve its ostensible purpose – helping employers and employees better understand their rights and responsibilities. In 2010, the Obama Administration began issuing Administrator’s Interpretations (AIs), instead of opinion letters. According to a recent conversation I had with Obama’s WHD Administrator David Weil, the selection of AI topics was the result of outreach to stakeholders, staff experience, and enforcement data. AIs covered broader areas of the law, not just narrow, idiosyncratic situations. As such, they provided assistance to a broader audience and, thus, were a more efficient use of government resources than opinion letters, which also are resource-intensive to produce. Weil explained to me his thinking in choosing between opinion letters and AIs: “we picked tools that yielded the greatest impact for the resources used; the opinion letter fails this test.” Most importantly, they weren’t for sale – WHD officials used their expertise to determine what questions were most urgent and consequential and were not simply reactive to those who could afford to assert their priorities.
Was the Obama Administration’s AI program perfect? Certainly not. It was criticized by some for not producing enough AIs or for not being responsive to a broad enough array of stakeholders’ interests. If Secretary Acosta in his testimony had simply questioned whether our program had fallen short and expressed an intent to fix it, I would not have taken issue with his opinion. But I cannot share his opinion that opinion letters are the right answer to those questions.
Daily News & Commentary
Start your day with our roundup of the latest labor developments. See all
August 1
The Michigan Supreme Court grants heightened judicial scrutiny over employment contracts that shorten the limitations period for filing civil rights claims; the California Labor Commission gains new enforcement power over tip theft; and a new Florida law further empowers employers issuing noncompete agreements.
July 31
EEOC sued over trans rights enforcement; railroad union opposes railroad merger; suits against NLRB slow down.
July 30
In today’s news and commentary, the First Circuit will hear oral arguments on the Department of Homeland Security’s (DHS) revocation of parole grants for thousands of migrants; United Airlines’ flight attendants vote against a new labor contract; and the AFL-CIO files a complaint against a Trump Administrative Executive Order that strips the collective bargaining rights of the vast majority of federal workers.
July 29
The Trump administration released new guidelines for federal employers regarding religious expression in the workplace; the International Brotherhood of Boilermakers is suing former union president for repayment of mismanagement of union funds; Uber has criticized a new proposal requiring delivery workers to carry company-issued identification numbers.
July 28
Lower courts work out meaning of Muldrow; NLRB releases memos on recording and union salts.
July 27
In today’s news and commentary, Trump issues an EO on college sports, a second district court judge blocks the Department of Labor from winding down Job Corps, and Safeway workers in California reach a tentative agreement. On Thursday, President Trump announced an executive order titled “Saving College Sports,” which declared it common sense that “college […]