On November 30, 2020 the DOL announced two opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA). An opinion letter is an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.
The recent opinion letters issued are:
FLSA2020-17: Addressing whether the regular rate of pay of an employee who is paid on a piece-rate basis may be calculated by dividing total earnings by the number of productive and nonproductive hours worked during the workweek in the absence of a specific agreement with the employee to use such calculation.
FLSA2020-18: Addressing whether insect farming qualifies as “agriculture” under Section 3(f) of the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements under Section 13(b)(12).
During the Trump presidency, the Wage and Hour Division has now issued 69 opinion letters.
For more than 70 years the DOL provided employers with guidance through opinion letters. However this practice was stopped under President Obama in 2010. It is unknown whether the DOL will again stop issuing Opinion Letters
The DOL has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.
If you need any assistance in the area of minimum wage or overtime or classifying workers as exempt from the FLSA, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.
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U.S. Department of Labor Issues Two FLSA Wage and Hour Opinion Letters