Since the beginning of 2026, the United States Department of Labor (DOL) has issued a slew of opinion letters. In this space, we often comment and provide guidance on those letters. With that said, it is important to remember that DOL Opinion Letters are not binding federal law.
To provide helpful context, DOL Wage and Hour Division (“WHD”) opinion letters are the agency’s official written explanations of how the Fair Labor Standards Act (“FLSA”) applies to the specific factual circumstances described in a particular inquiry. They are fact-specific responses, typically issued in response to requests from employers, employees, or their representatives. The DOL reinstated its practice of issuing opinion letters in June 2017 after a hiatus under the Obama administration, and the second Trump administration has continued this practice. However, courts do not treat opinion letters as binding law.
The authoritative framework for their judicial treatment was established by the United States Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), which held that agency interpretive guidance carries “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”
Under the Skidmore standard, courts assess the “power to persuade” of an opinion letter by examining the thoroughness of the agency’s reasoning, the consistency of the interpretation with prior agency positions, the validity of the reasoning, and the degree to which the letter reflects the agency’s technical expertise.
The Third Circuit applied this standard in Secretary United States Department of Labor v. American Future Systems, Inc., 873 F.3d 420 (3rd Cir. 2017), awarding the WHD interpretation the highest level of Skidmore deference. Here, Congress had ratified the position and the DOL had maintained the interpretation consistently across 46 years of opinion letters. Conversely, courts have declined to follow opinion letters that represent sharp, poorly-explained departures from longstanding prior agency positions.
Similarly, the Eleventh Circuit in Rafferty v. Denny’s, Inc., 13 F.4th 1166 (11th Cir. 2021) declined to give Skidmore deference to a 2018 opinion letter that contradicted decades of prior DOL guidance on tipped employee duties without adequate reasoning.
The Western District of Missouri in Cope v. Let’s Eat Out, Inc., 354 F.Supp.3d 976 (W.D. Mo. 2019) found that an abruptly issued opinion letter “purporting to change the DOL’s interpretation after years of consistently construing the Dual Jobs Regulation” did not persuade and was “unworthy of Skidmore deference” because the agency “d[id] not offer reasoning or evidence of any thorough consideration for reversing course.”
Importantly, on June 28, 2024, the Supreme Court of the United States issued its landmark decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S.Ct. 2244, 219 L.Ed.2d 832 (2024), overruling Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Chevron doctrine had governed administrative law for forty years. In a 6-3 ruling authored by Chief Justice Roberts, the Court held that the Administrative Procedure Act (“APA”) requires courts to exercise their own independent judgment when deciding whether a federal agency has acted within its statutory authority, and that courts may not defer to an agency’s interpretation of an ambiguous statute simply because the agency administers it.
However, Skidmore deference persists. The Loper Bright court reasoned that agency interpretations of statutes may still carry persuasive weight under Skidmore depending on the thoroughness of the agency’s consideration, the validity of its reasoning, and its consistency over time. This weaker form of deference – which gives an agency’s views the power to persuade, but not to control – is now the operative standard for agency statutory interpretations.
Practical Implications
Although opinion letters are not binding federal law, they can be very useful for employers. They provide vital guidance for employers and human resource professionals when dealing with day-to-day compliance issues. Additionally, beyond persuasive weight in litigation, opinion letters carry an important practical benefit for employers: good-faith reliance on them can provide an affirmative defense to back wage liability.
Under the Portal-to-Portal Act, 29 U.S.C. § 259, and as codified in the accompanying regulation at 29 C.F.R. § 790.17, an employer who acts in good faith reliance upon and in conformity with a written ruling or interpretation from the WHD Administrator may be shielded from FLSA liability.
Courts have recognized that if an employer establishes both reliance and conformity with an opinion letter, good faith is usually implied.
Stay Informed!
The Labor & Employment team at Bricker Graydon Wyatt is always monitoring the DOL, seeking clarity on difficult issues like opinion letters and the FLSA. Make sure you visit our HR Matters Blog to get the latest updates!
