Paul DeCamp Quoted in "DOL Opinion Letters Getting Chilly Reception in Courts"

A recent federal court order rejecting U.S. Department of Labor guidance on whether businesses must pay truckers for time they spend in sleeper berths on long trips shows that the DOL’s recently revived practice of issuing opinion letters may not be as helpful to employers as some had hoped. …

The administration has tackled various topics across dozens of opinion letters, including whether sheriff’s officers lose volunteer status by performing paid work for a third party, whether highly paid paralegals are owed overtime and whether a farm’s food processors are eligible for overtime under an exemption for agricultural workers.

“Many opinion letters are largely uncontroversial, and never need to see the light of day in court, because there’s no real dispute about how the issue should get resolved,” said Epstein Becker Green wage practice co-chair Paul DeCamp, who headed the DOL’s Wage and Hour Division under President George W. Bush. “Other opinion letters are much more controversial, and oftentimes bear directly on issues that are actively playing out in court.”

The DOL’s letters on sleeping time and when to pay workers at the tipped minimum wage fit into this second category. …

These rulings are part of a trend of courts looking skeptically on agency guidance that accelerated last year with the U.S. Supreme Court’s ruling in Kisor v. Wilkie. In that case, the high court held that courts should defer to agencies’ interpretations of legal ambiguities only if they’re “authoritative, expertise-based, fair, or considered judgment.” …

In light of this trend, employers need to think carefully about tailoring their policies around DOL guidance, attorneys say. DeCamp said employers can play it safe by steering clear of guidance on hotly contested issues, or guidance that courts have already rejected.