On June 7, 2017, the U.S. Department of Labor announced its withdrawal of two Obama-era opinion letters, stating the removal does not “change the legal responsibilities of employers under the Fair Labor Standards Act (FLSA) or Migrant and Seasonal Worker Protection Act”. However, certainly such withdrawal is meaningful from an enforceability standpoint, as well as the deference such interpretations have been historically given by the courts. That being said, the DOL has not issued replacement guidance, so how the DOL’s interpretation will change is not yet clear. What we do know is that courts will no longer consider these interpretations, let alone provide them deference in deciding how to interpret the law.

The first, Administrator’s Interpretation No. 2015-1 (July 15,2015), is, “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors.” In short, AI 2015-1 boldly concluded that, “In sum, most workers are employees under the FLSA’s broad definitions. The very broad definition of employment under the FLSA as ‘to suffer or permit to work’ and the Act’s intended expansive coverage for workers must be considered when applying the economic realities factors…”. By withdrawing such opinion, the DOL has signified a shift toward more targeted requirements when determining whether an individual is an employee or independent contractor.

The second, Administrator’s Interpretation No. 2016-1, is “Joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act.” When published, this opinion letter established, for the first time, the distinction between “horizontal” and “vertical” employment. It concluded that joint employment has become more common, and that joint employment should be “regularly considered” in FSLA and MSPA cases. Further, referring to AI-2015-1 (the other opinion letter withdrawn), the DOL stated, “As with all aspects of the employment relationship under the FLSA and MSPA, the expansive definition of ’employ’ as including ‘to suffer or permit toward’ must be considered when determining joint employment, so as to further the statutes’ remedial purposes.” Similarly, we don’t yet know what the DOL’s position is now with respect to joint employment under the FLSA, but it is very likely that it will be less onerous on employers.