Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Department of Labor (DOL) announced on Friday, March 6, 2009, that they were simultaneously publishing and withdrawing 18 wage and hour opinion letters issued during the waning days of the last administration.
Former Acting Wage and Hour Administrator Alexander J. Passantino signed the letters between January 14 and 16, but according to the DOL they do not appear to have been mailed before President Obama’s inauguration. “In any event,” the DOL stated, “we have decided to withdraw [these opinions] for further consideration by the Wage and Hour Division.”
The Department can always reconsider and withdraw a previously-issued opinion letter, but this kind of mass withdrawal appears to be unprecedented. The DOL has not withdrawn 18 other opinion letters issued around the same time, but that apparently were mailed. The Administrator issued a total of 36 opinion letters during the Bush Administration’s final two weeks in office, half of which have now been withdrawn. By contrast, only 19 opinions were issued during all of 2008.
The withdrawn opinions were mostly favorable to employers. They included favorable interpretations of the administrative exemption (e.g., finding exempt status for construction project supervisors, product demonstration coordinators, fraud analysts, coordinators of temporary personnel, and insurance client service managers); approval of coaching as exempt teaching work; allowing exempt salary deductions for full-day absences to be based on the number of scheduled hours of work the employee missed; approval of paying contractual premiums in addition to salary to nonexempt employees paid on a fluctuating workweek basis; favorable clarifications of the tip credit rules; an opinion that drain cleaning services qualify as “retail” under the 7(i) exemption; and a favorable on-call time ruling. The withdrawn opinions had also reaffirmed prior Department positions that governmental employees may not provide the same services for which they are employed as “volunteers”; that non-discretionary “per day” bonuses must be included in the regular rate of pay; and that pilots do not qualify for the professional exemption.
This entry was authored by Daniel Thieme.
