The Department of Labor says it’s going to stop issuing Opinion Letters on specific questions posed by employers. Is that a signal of a new get-tough attitude under the Obama administration?
Some employment attorneys seem to think so.
The issue came up after the DOL’s Wage and Hour Division released an administrator’s interpretation stating that mortgage loan officers don’t qualify under the Fair Labor Standard Act’s administrative exemption. That announcement reversed an opinion letter issued during the Bush administration.
‘A fundamental shift’?
Along with the administrator’s interpretation, the agency announced it’d be ending the practice of issuing Opinion Letters. From here on, a DOL statement said, “requests for opinion letters generally will be responded to 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.”
The agency’s ruling on mortgage loan officers is certainly bad news for the home loan industry, but “employers in other industries also should pay careful attention,” according to a recent piece on the Web site of the law firm Phelps Dunbar. “The Department of Labor’s interpretation signals a fundamental shift in how the agency will advise employers of their legal obligations, which likely will make it more difficult to assert certain defenses to liability.”
Translation: Don’t expect much help from the DOL.
The Morgan Lewis law firm issued a statement calling the change to administrator interpretations “a stunning departure from accepted practice.” The firm predicted that the DOL will use administrator interpretations to “reclassify as nonexempt employees who were previously thought to be exempt based on prior DOL regulation and guidance.”
Are we looking at a more employee-friendly (or employer-unfriendly) DOL? Only time will tell. But the signs look ominous.
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