Friday, January 22, 2021
In 2017, then-Department of Labor (DOL) Secretary Alexander Acosta, appointed by former President Donald Trump, announced the Wage and Hour Division (WHD) would be reviving the practice of issuing Opinion Letters, seeking to “provide clarity that helps increase compliance to the benefit of all.”
Opinion Letters represent official statements of DOL policy and, therefore, may form the basis of a “good faith” defense to an alleged Fair Labor Standards Act (FLSA) violation. During the Obama administration, the DOL stopped issuing such letters. Instead, it opted for more limited “Administrator Interpretations” that covered broader issues as opposed to the often nitty-gritty details addressed in Opinion Letters.
The Recommendations
In response to the trend analysis of the primary and secondary issues, Marcus proposed the following recommendations for the Agency:
Setting Expectations for a Complainant
OFCCP Field Officers can (and should) use the Ombuds Service
Ensuring Compliance
Addressing Bias
We reached out to Marcus and asked, “You give several recommendations after identifying the trends in the past year. How has your feedback been received at the National Office, and which, if any, of these recommendations do you feel will be proactively addressed in the near future?”
Marcus graciously responded to us:
“The goal of the annual report is to present the numbers, share how I interpret those numbers, and provide recommendations accordingly. From there, I want people to make their own interpretations, and that’s why it’s important to me that the report itself is only the beginning of a longer conversation. So far, I’ve been pleased to see that not only the National Office
Today, one day before the end of the Trump Administration, the Labor Department issued a series of opinion letters, one of which concluded that certain distributors who resell to retail.
Friday, January 15, 2021
On January 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued “Opinion Letter: Older Worker Benefit Protection Act,” which clarifies that United States employers need not include non-U.S. citizen employees working outside of the United States as part of a “decisional unit” in the disclosure schedules attendant to waivers of age claims covered by the Older Workers Benefits Protection Act (OWBPA). This formal Opinion Letter represents the official position of the EEOC and provides a defense for employers who rely on its terms. 29 C.F.R. §§ 1626.21.
Disclosure schedules are hallmarks of the OWBPA, an amendment to the Age Discrimination in Employment Act (ADEA) that imposes specific requirements for waivers of federal age discrimination claims by workers age 40 or older in order for such waivers to be “knowing and voluntary.” 29 U.S.C. § 626(f). When a waiver is part of a group termination or exit incentive program
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Lately, there has been a lot of “action” from the USDOL on the thorny and misunderstood issue of travel time. The agency has just issued another Opinion Letter that addresses the issue of whether employers must pay workers for travel time on days when they spend part of the day working from home and the other half of the day in the office. The USDOL concluded that payment for such travel time was not warranted.
The Opinion Letter takes the (in my view) correct position that, provided the employee may use his time “to use effectively for her own purposes” between working from home and then switching to the office, employers are not compelled to pay for travel time. The Opinion Letter notes that “when employee arranges for her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for the employee to use for her own purposes, the reserved time is not