Robert Whitman Quoted in Employment Law360
"Lawyers Bemoan Loss Of DOL Opinion Letters"

Robert Whitman was quoted in the May 21, 2010 Employment Law360 article, "Lawyers Bemoan Loss Of DOL Opinion Letters." The article discussed the U.S. Department of Labor's decision to issue "administrator interpretations" of the law, abandoning its practice of providing opinion letters tailored to employers' specific wage-and-hour compliance questions. According to the article, the DOL says that administrator interpretations represent a more efficient and productive use of resources than do opinion letters because the opinion letters respond to fact-specific requests, a "slight difference in the assumed facts may result in a different outcome."

According to Rob, prior to the DOL's decision, under the Portal-to-Portal Act, an employer involved in a dispute with an employee was protected from having to give up back pay or liquidated damages if it could show that it had relied in good faith on an opinion letter stating that a particular practice or policy was in step with the FLSA — even if a court later disagreed with the letter's conclusion. He commented, "That safe harbor may have just gotten a lot smaller and a lot less safe," and added that broader guidance exemplified by the DOL's new approach could leave employers with less clarity as to whether particular jobs qualify as exempt.