When the Department of Labor (DOL) withdraws one of its previous opinion letters and issues a new interpretation, should a court change its ruling? No — not according to a federal judge in Arkansas.
DOL Opinion Letters
As background, the DOL issues opinion letters as a means to provide guidance for Fair Labor Standards Act (FLSA) interpretation. Under the Obama Administration, the DOL dispensed with opinion letters for many years, instead issuing administrative interpretations, but under the Trump Administration, opinion letters came back in 2018. The DOL opinion letters are not binding legal authority, but they can serve as support for a company’s good faith defense of alleged FLSA violations for similar situations. As the Supreme Court declared: “[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference. They are ‘entitled to respect,’ but only to the extent that they are persuasive[.]”
At Issue: Truck Driver Sleeper Berth Time
In Browne v. P.A.M. Transport, Inc, et al., truck drivers argued that the time they spent in a sleeper birth should be counted as hours worked under the FLSA. The Arkansas district court certified a class under both the FLSA’s collective action standard and the federal rules for a class action. In October 2018 the court ruled that the federal regulations at 29 CFR 785.22(a) required that sleeper berth time over eight hours must be compensated during shifts of 24 hours or longer. The court determined the regulation to be unambiguous and, thus, did not need to defer to the DOL interpretation. But it was nonetheless “comfort[ed] to see that DOL’s interpretation accords with this Court’s own.”
P.A.M. filed a motion to try and decertify the class based on, among other things, an opinion letter published in July 2019 that reversed the DOL’s previous position.
New Opinion Letter
The DOL’s previous interpretation – which went back to the 1970s – related to sleeper berth time said that sleeping time may be excluded from hours worked where “adequate facilities” were furnished, but only up to eight hours of sleeping time may be excluded in a trip 24 hours or longer, and no sleeping time may be excluded for trips under 24 hours. On July 22, 2019, the Wage and Hour Division published an opinion letter withdrawing its previous opinion on the topic and declaring that 29 CFR 785.22 refers to on-duty sleeping time and another section, 785.41, refers to non-compensable sleeping time. Thus, under the new interpretation, truck drivers would not be entitled to compensation for sleeper berth time during which they are permitted to sleep, no matter how long. According to the current DOL’s view, requiring sleeper berth time to be compensable would be “unnecessarily burdensome for employers.”
What Does the Court Do with the New Opinion Letter?
The court, however, did not see this change by the DOL as cause to reverse its previous rulings. The judge detailed that deference to agency interpretation of a regulation is appropriate only when the regulation is “genuinely ambiguous after the application of standard tools of interpretation, and even then, only if the agency’s interpretation is ‘authoritative, expertise-based, fair, or considered judgment.’” The court then reiterated its previous reasoning that the regulation in question was unambiguous so it was never necessary to reach the DOL’s interpretation.
Similarly, the court was not swayed by the defendants’ argument that a new opinion letter received from the Arkansas Department of Labor (ADOL) should change the court’s mind. ADOL issued a letter in September 2019 setting forth that the state agency would follow the DOL’s interpretation on the issue. Defendants argued that even if the court would not give deference to the federal DOL’s updated interpretation under the federal standard for deference to agency interpretations, it should give deference to the state agency’s interpretation under the state standard for deference. The court carefully scrutinized the September 2019 ADOL letter and found that ADOL intended it not as an agency interpretation of the state regulations, but only to set out its enforcement policy to follow the DOL’s interpretations in an effort to provide consistency between the federal and state levels.
In the end, the court stuck to its previous ruling that sleeper berth time over eight hours must be compensated during shifts of 24 hours or longer – a position that would be inconsistent with the current DOL interpretation of the issue.
Takeaway: DOL Opinion Letters Are Important, but Not Absolute
The P.A.M. case is an interesting study in how federal courts’ treat DOL opinion letters, especially where there is a change in the middle of a case. Employers should pay attention to the DOL opinion letters for useful guidance in how the current department interprets thorny FLSA issues. However, employers should not assume a court will agree with the guidance. As this case clearly demonstrates, the letters will not serve as absolute authority as they are very fact-specific and do not carry the force of law.