EEOC commissioner says feds should reinstate 'liability shield' opinion letters

Dive Brief:

Federal opinion letters provide a "liability shield" for employers, but also benefit courts, workers, unions and other stakeholders despite being increasingly politicized, according to a Missouri Law Review article written by Keith Sonderling, commissioner at the U.S. Equal Employment Opportunity Commission, and Bradford J. Kelley, his chief counsel.
Federal labor and employment law regulators began to issue opinion letters following 1947 legislation by Congress, but their usage varied widely under recent administrations, with the second Bush administration's Wage and Hour Division issuing a record 318 letters and the Obama administration moving away from practice in 2010, Sonderling and Kelley wrote. EEOC has issued five opinion letters since April 2020.
The authors also made suggestions for improving opinion letters, including modeling them after federal court decisions and making them "as convincing as possible" to ensure they persuade the public and receive deference from courts. Agencies also could issue opinion letters before proposing new rules to provide stakeholders the chance to weigh in on positions to be addressed via rulemaking. The authors also called on state labor and employment agencies to issue their own letters.

Dive Insight:

Debate over the value of opinion letters — and which parties truly benefit from them — has become one of the more noticeable political divides among members of the U.S. Department of Labor, EEOC and related federal agencies in recent years.

As Sonderling and Kelley indicated, Democratic presidential administrations generally have decided to forgo issuing the letters, sometimes in favor of broader Administrative Interpretations.

Sonderling is one of two Republican EEOC officials to discuss Chair Charlotte Burrows' position on the letters in recent years. Last year, then-Acting Chair Victoria Lipnic said Burrows, a Democrat, was "not a big fan" of opinion letters. Likewise, Sonderling and Kelley cited a Bloomberg report in which Burrows was quoted as saying that the publication of one of the agency's 2020 opinion letters "would open the agency up to 'a cottage industry' of parties wanting the EEOC to weigh in on disputes."

DOL reinstated wage and hour opinion letters under the Trump administration in 2017 and tackled a variety of issues with the letters, such as the compensability of doctor-requested breaks under the Fair Labor Standards Act and the Family Medical and Leave Act.

The Biden administration has started withdrawing some opinion letters, however. In February 2021, it rescinded two letters: one weighing in on the classification of certain on-demand workers and another addressing the compensability of hours truck drivers spend off-duty in their trucks' sleep berths.

An opinion letter may serve as a liability shield for the employer that requested it, but it isn't always a complete defense for others, as court opinions illustrate. Still, management-side attorneys have argued that, while the letters are imperfect, they may serve as guidance for employers aiming to comply with the law in good faith.