On March 24, 2010, the Department of Labor's Wage and Hour Division ("WHD") stated that it will not issue individualized opinion letters going forward. These opinion letters conduct a fact-specific analysis of the Family Medical Leave Act ("FMLA") and Fair Labor Standards Act ("FLSA"). The WHD indicated that it will now respond to requests for opinion letters by referring the applicant to the applicable statutes and/or regulations. The WHD also stated that it will issue "administrative interpretations" on issues relating to an entire industry or large class of employees. These "administrative interpretations" will be based on hypothetical fact patterns, rather than actual fact patterns submitted by employers.
This move is significant because employers regularly rely on opinion letters issued by the WHD, as they involve fact-specific interpretations of the law without the expense and hassle of litigation. Without these fact-specific analyses, employers will be required to guess, to a certain extent, how a court or the WHD would interpret an employer's actions. This move by the WHD indicates a lessened willingness to work with employers as they attempt to determine whether their employment practices are in compliance with applicable statutes and regulations.
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