Frozen Regulations Lead to DOL Withdrawing Opinion Letters

Posted on Feb. 2, 2021  /   0

Someone asked me once in all the years you have been in Human Resources, what is the one thing that you most cringe about? My answer is always the same. It’s whenever we have a change in administration in the Oval Office. When a new President is elected and takes office, they want to make an impact. With President Obama, we got ACA, with President Clinton, we got FMLA, with President Reagan we got COBRA. All laws we are living with today.  

Today, we have been hearing in the news how President Joe Biden is overturning what President Trump has place into action during his administration. On January 20, 2021, President Biden ordered all executive departments and agencies to freeze new or pending regulations so that the President’s appointees can review them. This freeze applies to the new independent contractor rule and the revised regulation regarding tipped employees and tip pools.

In light of this freeze, the U.S. Department of Labor (DOL) has withdrawn three recent opinion letters addressing tip pools and independent contractors. The DOL explains that: “These letters were issued prematurely because they are based on rules that have not gone into effect.” 

The following opinion letters have been withdrawn and cannot be relied upon:

  • FLSA2021-4: Addressing whether a restaurant may institute a tip pool under the FLSA that includes both servers, for whom the employer takes a tip credit, as well as hosts and hostesses, for whom a tip credit is not taken.
  • FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA.
  • FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement safety measures required by law constitutes control by the motor carrier for purposes of their status as employees or independent contractors under the FLSA, and whether certain owner-operators are properly classified as independent contractors.

The Dept. of Labor issued four (4) opinion letters for similar reasons…. Since each is vastly different from the other I thought I would share them with you. As a Human Resources Consultant and having many clients in various industries, I want to be sure we are sensitive to all areas of the law.  

For those new to the ever changing Human Resources world, an opinion letter is an official, written opinion by the DOL on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. It is the administrative agency’s opinion on how the law should be applied which may be given deference by the courts.

Here are two (2) opinion letter that the U.S. Department of Labor recently published:

  • FLSA2021-6: Addressing whether staffing firms that recruit, hire, and place employees on assignments with clients may qualify as “retail or service establishments” for purposes of Section 7(i) exemption from the FLSA’s overtime pay requirements
  • FLSA2021-7: Addressing whether certain local small-town and community news source journalists are creative professionals under Section 13(a)(1) of the FLSA


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