The Sword and the Shield: The Benefits of Opinion Letters by Employment and Labor Agencies

Opinion letters are a highly beneficial vehicle for federal and state agencies to provide meaningful guidance for courts, businesses, workers, unions, trade groups, practitioners, advocacy groups, and the public at large. This Article examines the benefits and criticisms of opinion letters issued by employment and labor agencies. For more than seventy years the Department of Labor (“DOL”) provided employers, workers, and others with guidance regarding the interpretation and application of the Fair Labor Standards Act and related regulations through opinion letters. Indeed, opinion letters have been issued during both Democratic and Republican administrations.

Unfortunately, in more recent years, opinion letters have become increasingly – and unnecessarily – politicized. Significantly, DOL under the Obama Administration stopped the practice of issuing opinion letters and thereby denied the public the opportunity for significant and timely guidance. Fortunately, in 2017, DOL announced that it would resume its practice of issuing opinion letters. At the time of this publication, it is unclear what the current administration will do.