Thursday, April 1, 2010

US Department of Labor Changes Course on Compliance Assistance: Will Issue Broad Based Administrator Interpretations Instead of Opinion Letters

By Robert R. Roginson

On March 24th, the United States Department of Labor Wage and Hour Division made a significant change in its compliance assistance by moving from its longstanding practice of issuing fact specific opinion letters to issuing more general, across-the-board Administrator's Interpretations. The change is significant because it likely signals the DOL's intention to more aggressively establish its own interpretation of federal wage and hour laws.

According to the DOL, the move to Administrator Interpretations is being taken "to provide meaningful and comprehensive guidance and outreach to the broadest number of employers and employees." The DOL states that the Interpretations "will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue [and that] guidance in this form will be useful in clarifying the law as it relates to an entire industry, a category of employees, or to all employees." The DOL does not intend to abandon opinion letters altogether, but will response to such requests "by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request but without an analysis of the specific facts presented."

In a telling development of how the DOL may use the Interpretations, the DOL issued its first Interpretation under the new policy reversing its position on the exempt status of mortgage loan officers as "administrative" employees. Vacating an opinion letter issued by the DOL under the Bush Administration in 2006, Deputy Administrator Nancy J. Leppink concluded that employees performing the typical duties of a mortgage loan officer do not qualify as administrative employees exempt from the provisions of the federal Fair Labor Standards Act. Click here to download and view a copy of the new Administrator’s Interpretation. We will provide in the coming days an analysis of that new interpretation.