Carrie B. Hoffman Suggests Recordkeeping, Litigation Strategies for Employers

Bloomberg BNA


BLOOMBERG BNA: How has the decision of the Labor Department’s Wage and Hour Division to cease issuing opinion letters under the FLSA affected employers and defense strategies in litigation? Are there particular amicus briefs filed by the agency of which defense attorneys should be aware?

HOFFMAN: The change in policy has negatively impacted employers’ ability to obtain information and rely upon it as part of their wage and hour enforcement position, both in and out of the litigation context. FLSA compliance has never been easy, and the application of the statute and regulations are extremely fact-specific. For more than 60 years, opinion letters were one way that the DOL provided guidance to employers. In recognition, however, that employers were using these opinion letters against the DOL and private plaintiffs, the DOL announced the policy that it would no longer issue such letters. Instead, it would issue Administrative Interpretations which would not apply the law to a specific set of facts — meaning they have not provided real guidance to employers. In effect, the DOL has shifted its resources from assisting employers (and providing good defense arguments in litigation) to enforcement.

The amicus briefs filed by the DOL most recently were in 2011 on the issues of (1) whether pharmaceutical sales representatives fit within the outside sales exemption and (2) whether the retaliation provisions of the FLSA covered internal employee complaints. On the issue of pharmaceutical sales representatives, the DOL is attempting to effectuate policy through the amicus brief rather than formal rulemaking. At the Supreme Court argument on this issue, Justice Breyer noted, if the agency is going to ‘‘. . .suddenly do something it hasn’t done for 75 years, the right way to do it is to have notice and comment, hearings, allow people to present their point of view, and then make some rules or determine what should happen. Perhaps they’d say for the future let’s do this, but not let’s give people a windfall for the past. . . . that’s my instinctive reaction.’’ While the specific issue may not be of interest to many employers, how the Court handles the DOL’s enforcement position will have significant impact. The Supreme Court’s decision may provide important guidance to employers on whether they can rely on past enforcement policy of the agency.

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