Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360 Employment Authority, in “Despite Biden's Brush-Off, DOL Opinion Letters Still Matter,” by Jon Steingart. (Read the full version – subscription required.)
Following is an excerpt:
But opinion letters should be part of a constellation of materials that inform an understanding of an employer's wage obligations, said Paul DeCamp, a member of the firm and co-chair of the national wage and hour practice group at Epstein Becker Green. He counsels and represents businesses in wage and hour matters and authored opinion letters when he was WHD administrator during the George W. Bush administration.
"They are one data point in figuring out what the law likely is," he said. An opinion letter is a snapshot in time, and the DOL's views may change. Plus, courts tend to find a way to defer to guidance they favor and reject positions they disagree with, said DeCamp, who is a member of Law360's 2021 Employment Editorial Advisory Board.
Even if a court finds that the DOL's legal reasoning in a letter was flawed, an employer that can demonstrate it relied on the agency's guidance in good faith is still shielded from liability in the present case, DeCamp said.
Good-faith reliance means the factual situation the employer faced was like the one the letter addressed, he said. The employer also has to show it actually relied on the DOL guidance when it structures its pay practices, he said.
"It's not uncommon for an employer to learn about an opinion letter only after the fact," he said. "If, however, the employer can demonstrate that it knew about the opinion letter and in fact structured its practices with the opinion letter in mind, the employer has a much better shot at being able to use this defense."
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