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.