Hunton Retail Law Resource

In June, the U.S. Department of Labor (DOL) announced that it has relaunched its opinion letter program. According to the DOL, an opinion letter is an “official, written response from the department about how a specific law we enforce applies to a particular set of facts.” The relaunch will reinstate the previous program with which employers may be familiar, but with an expanded scope: the DOL’s five subagencies (the Wage and Hour Division, the Employee Benefits Security Administration, the Occupational Safety and Health Administration, the Veterans’ Employment and Training Services, and the Mine Safety and Health Administration) will all participate.

Historically, level of activity of the DOL’s opinion letter program ebbed and flowed(or sometimes ceased completely) depending on the administration in power. Generally speaking, Republican administrations have favored opinion letters as an employer-friendly tool to promote compliance and avoid surprise, while Democrat administrations have reduced or paused their issuance. For example, the program was suspended by the Obama administration, and the DOL elected instead to issue “Administrator Interpretations,” which provided generalized guidance rather than responses to questions on specific factual scenarios. The Trump administration reinstated the program in its first term, and then the Biden administration reduced its use significantly (only putting out 8 opinion letters).

The opinions of the Wage and Hour Division are likely to be the most useful to retailers, as these opinions cover the application of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). However, opinion letters do not hold the same power as statutes or regulations. They are binding as to the employer that writes the letter, and can be used as a defense to FLSA claims if the employer relies on the letter in good faith. Courts can also use these opinion letters as persuasive authority, but may be less likely to do so given the Supreme Court’s 2024 decision in Loper-Bright, which we discussed at length here.

The availability of this new resource also does not mean that employers should fire off every possible legal question they may have to the DOL. Again, opinion letters are binding whether they are favorable to the employer or not, so employers should work closely with counsel to determine (1) whether an opinion letter is a strategically sound move; (2) what facts should be included; and (3) what underlying legal authority could apply.

In sum, the DOL’s relaunch of an expanded opinion letter program may be a positive development for employers, if used in a thoughtful way. If an employer and counsel determine that an opinion letter is appropriate, the employer should monitor future opinion letters and developments in the courts to ensure that the agency’s opinion is not withdrawn or overruled.