- The U.S. Department of Labor (DOL) withdrew Feb. 19 a pair of wage-and-hour opinion letters issued in 2019 by the agency's Wage and Hour Division, according to its website.
- Published in April 2019, the first letter determined that a virtual marketplace company's on-demand workers were correctly classified as independent contractors under the Fair Labor Standards Act (FLSA). DOL said the letter was withdrawn because it was "based on rules that have not gone into effect."
- The second letter, published in July 2019, stated that the hours truck drivers spend off-duty in their trucks' sleep berths do not qualify as compensable time under the FLSA. This letter was "inconsistent with longstanding WHD interpretations" and "[s]everal courts have declined to follow this letter," DOL said in giving its rationale for withdrawal.
The actions mean both letters "may not be relied upon as a statement of agency policy" as of Feb. 19, per DOL.
While potentially helpful to employers in their compliance operations, opinion letters have limitations, legal sources previously told HR Dive. A letter may not apply to an employer's particular situation and, as DOL noted, courts may not defer to the agency's interpretation of a given subject.
Administrations have also varied widely in their approach toward opinion letters in recent years. The Obama administration, for example, favored the use of "Administrator's Interpretations" over opinion letters, and it also withdrew several letters issued by the administration of President George W. Bush.
Aside from the two letters withdrawn Feb. 19, the Biden administration previously withdrew a batch of letters including one that addressed the ability of employers to maintain a tip pool that includes both tipped employees for whom an employer takes a tip credit as well as nontipped employees.
More broadly, DOL's decision to withdraw the letter addressing on-demand workers may be representative of the Biden administration's broader approach to worker classification under federal law. Earlier this month, the agency proposed a delay of the Trump administration DOL's independent contractor rule, which would have revised its interpretation of the FLSA's classification provision for determining whether a worker is an employer or independent contractor.