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Times Are a Changing at the Department of Labor

U.S. Secretary of Labor Alexander Acosta has made it clear that major change is ahead at the Department of Labor while he is at the helm.  In early June, Secretary Acosta announced the immediate withdrawal of two Wage and Hour Division Administration Interpretations (No. 2016-01 and No. 2015-1) on joint employment and independent contractor status issued under the prior Administration.  Joint employment occurs when two companies, such as a staffing agency and the company at which the employee is staffed, are arguably both employers of the same employee. 

Administrator’s Interpretation No. 2016-01, issued in January 2016, addressed joint employment under the Fair Labor Standards Act (“FLSA”) and Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”) and Administrator’s Interpretation No. 2015-1, issued in July 2015, addressed the definition of independent contractors under the FLSA.  Despite the withdrawal of these Administrative Interpretations, the Department of Labor stressed this withdrawal “does not change the legal responsibilities of employers under the Fair Labor Standards Act or Migrant Seasonal Agricultural Worker Protection Act, as reflected in the Department’s long-standing regulations and case law.”

In late June, Secretary Acosta then announced the Wage and Hour Division would renew its practice of using opinion letters to provide guidance to covered employers and employees.  These opinion letters were replaced by general guidance back in 2010.  This general guidance provided administrative interpretations of various DOL statutes.  The opinion letters are an official, written opinion by the Wage and Hour Division on how a particular section of the law applies in specific circumstances. They can be incredibly helpful for employers with specific questions regarding their pay practices.

For employers, these changes are much welcomed after a period of heavy enforcement under the previous Administration.  Therefore, as the new administration settles into its term, it will be interesting to see how the Department of Labor’s enforcement shifts gears.  Time will tell if laissez-faire treatment by this Administration will actually occur.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.