Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Bloomberg Law, in “Trump Orders Limit Effect of Agency Guidance on Industry,” by Cheryl Bolen, Shira Stein, Chris Opfer, Lydia O’Neil, Ellen Gilmer, and Amena Saiyid.
Following is an excerpt:
President Donald Trump signed a pair of executive orders intended to reduce the impact of agency guidance the White House believes has become a back-door means of regulation.
Industries often seek guidance from agencies to help them comply with complex rules. These agency policy statements—memorandums, circulars, bulletins, and letters—aren’t legally binding but often can serve as the basis for enforcement. Critics view such guidance as an improper shortcut around formal rulemaking. …
What About Legal Letters?
It’s not immediately clear whether the orders will apply to legal opinion letters, like those that the Labor Department revived in recent years to address questions from lawyers for businesses, workers and unions. The missives are tailored to specific fact situations, but some say they’re often little more than regulations in letters’ clothing.
The DOL shortly after Trump was inaugurated brought back the letters, which had been coveted by attorneys during George W. Bush administration. Critics call them a “get out of jail free card” because lawyers can use the letters to defend companies accused of shortchanging their workers in court.
“I suspect opinion letters will not be covered by the orders because they are a specific type of guidance authorized by the Administrative Procedure Act,” Paul DeCamp, an Epstein Becker attorney who served as DOL Wage and Hour chief in the Bush administration, told Bloomberg Law.