Wage and Hour Opinion Letters are Back!
The Department of Labor (“DOL”) officially announced on June 2, 2025, that “the Wage and Hour Division is relaunching its opinion letter program and encourages submissions from the public.”
For decades, DOL has provided an invaluable resource for understanding the contours of compliance under the Fair Labor Standards Act. This resource is the body of guidance found in the collection of Wage and Hour Opinion Letters. DOL has a searchable database of its opinion letters that is available at https://www.dol.gov/agencies/whd/opinion-letters/request. The database goes back to 1993.
As described by the Wage and Hour Division (“WHD”) on its website:
An opinion letter is an official written opinion by WHD on how a particular law it enforces applies to the specific workplace situation presented by a worker, business, or other entity requesting an opinion. They are designed to offer practical, reasoned answers to help the public understand their rights and responsibilities under the laws. Generally, these letters concern matters where the application of existing regulations or guidance is unclear.
WHD further states that its opinion letters “can be particularly powerful” for employers that adopt a practice in reliance on an opinion letter “should the relevant practice be challenged at a future time.” This is because they can be relied upon as a defense against FLSA claims if the employer can establish that it paid its employees "in good faith in conformity and in reliance on any written administrative regulation, order, ruling, approval or interpretation" of the Administrator of the Wage and Hour Division of DOL. See 29 U.S.C. § 259 (among the provisions adopted in 1947 as part of the Portal-to-Portal Act amendments to the FLSA).
There is a belief among worker advocates that wage and hour opinion letters enable employers to find ways to cheat employees. While opinion letters certainly can be skewed in favor of employers as an outgrowth of the prevailing policy views of a given administration, the opposite also can be true. This is why it has baffled me that the Obama and Biden Administrations squandered their opportunity to shape this body of interpretive guidance.
Members of the public can request an opinion letter by submitting a request to WHD via electronic mail to WHDOpinionLetters@dol.gov. A request can also be sent to:
U.S. Department of Labor
Wage and Hour Division
Division of Regulations, Legislation and Interpretation
200 Constitution Avenue, NW, Room S-3502
Washington, D.C. 20210
Do be sure to review the tips WHD has posted on its opinion request landing page. Basically, one should provide a clear description of the scenario about which an opinion is desired and the laws or regulations the requester believes may be pertinent. It should be noted that a request for an opinion letter cannot be related to an existing investigation or litigation.
In addition to the WHD program, DOL also announced that it is launching opinion letter programs and other similar efforts at other DOL constituent agencies including the Occupational Safety and Health Administration, Employee Benefits Security Administration, Veterans’ Employment and Training Service, and the Mine Safety and Health Administration. Links to these resources can be found at https://www.dol.gov/agencies/oasp/compliance-initiatives/opinion-letters.