On January 5, the Department of Labor (DOL) quietly took a step to bolster the legal power of bosses over their workers by reissuing 17 previously withdrawn opinion letters. Developed at the end of George W. Bushâs final term, the letters had been withdrawn by the Obama administration, which discontinued the practice of issuing opinion letters altogether.
Opinion letters address specific questions submitted to the DOL by either employees or employers. The party then receives an official interpretation from the DOL Wage and Hour Division (WHD) detailing how the Fair Labor Standards Act (FLSA) and/or the Family and Medical Leave Act is implicated in their case. That opinion can then be used as guidance in future litigation. Other employers can also rely on an opinion letter, even if they didnât request it themselves, as long as the facts are similar.
Critics of opinion letters point out that they take a long time for the labor department to craft (the George W. Bush administration averaged just 28 a year), and they only address one companyâs specific situationâdespite the fact that they can be used to the advantage of other employers in future cases.
Thereâs another big critique of opinion letters: They make it easier for employers to fight labor violation claims in court.
âEmployers love opinion letters,â Patricia Smith, former Obama administration solicitor of labor, toldÂ In These Times. âTheyâre viewed by many as Get-Out-of-Jail Free cards.â
This sentiment was echoed by Michael Hancock, who managed the WHD opinion process for Bushâs final term. âItâs no secret that the opinion letter process largely serves the interest of employers; it gives them a legal defense if their practices comport with what the opinion letter says, even if the Department of Labor was wrong in what the opinion states,â heÂ toldÂ BloombergÂ last March. âIt offers a serious and real significant defense to employers.â
Employers typically have the resources to pay their attorneys to talk with WHD officials before they request an opinion, so they can make sure they only ask if they are going to get a favorable result. The process is further skewed toward employers if the administration theyâre requesting opinion from is employer-friendlyâa fact that is certainly true of the Trump administration.
The Obama administration ended the established practice of issuing opinion letters and decided to issue a small amount of informal guidance documents instead. Last June, Trumpâs labor secretary Alexander AcostaÂ announcedÂ that he was withdrawing two of the informal guidance documents, a move that was hailed by business groups, as the documents both benefited workers. One of the letters dictated that subcontractors could be held liable if they failed to comply with FLSA requirements. The other offered an interpretation of âjoint employersâ and required some businesses to comply with the FLSAâs overtime rules. Â That same month Acosta announced that opinion letters were returning.
Lawyers who say that they received favorable opinions for employers during the George W. Bush administration explained toÂ BloombergÂ how the process worked. Christopher A. Parlo, whoÂ representsÂ management clients,Â said, âIn the past you could go to DOL and lay out a scenario for them and they would give you their informal view on how that situation might play out. And if you didnât believe that the result was one that would help your client or industry, you could choose not to ask for formal opinion. I thought that was a great process.â
The 17 Bush administrationÂ opinionsÂ that are being revived refer to a variety of topics, from year-end non-discretionary bonuses to salary deductions for full-day absences. Smith toldÂ In These TimesÂ that it was hard to know exactly what kind of impact these specific opinions would have, but said she thought that the move was at least partially symbolic: a signal to employers that the pro-business policies of Bushâs labor department have officially returned. âThe message is, âWeâre back,ââ she said.
National Employment Law Project executive director Christine Owens issued a strong statement regarding the move, calling it âanother example of how this administration is siding with big business to make it harder to get paid for working overtime and to make it easier for companies to reap the benefits of young workersâ labor without paying a cent for it.â
Thereâs a good chance that the WHD, which issues the opinion letters, will be soon be run by Trump nominee Cheryl Stanton, who is expected to be confirmed by the GOP-controlled Senate early this year. Stanton served as the White Houseâs principal legal liaison to the Labor Department under George W. Bush and spent years defending companies in labor cases. Sheâs also had an unpaid wage scandal of her own: In 2016 she wasÂ suedÂ for allegedly failing to pay her house cleaners.
For the first time in over eight years, employers will be able to ask the White House for advice when they get tied up in legal battles. It seems quite probable that the pro-business forces dominating the Trump administration will have a lot to give.
This article was originally published at In These Times on January 18, 2018. Reprinted with permission.
About the Author:Â Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria