I know you’re thinking, what possibly can a turtle hiding in his shell have to do with wage and hour law?! Since the Biden Administration has begun, several Department of Labor (DOL) opinion letters have been withdrawn (get it yet?) by the DOL (and are no longer assessable). In this instance, they may no longer be relied upon. Employers who changed their practice based on one of the following opinion letters should revisit the issue:

  •  FLSA2021-9 (whether tractor-trailer truck drivers are employees or independent contractors).
  • FLSA2021-8 (whether distributors of manufacturer’s food products are employees or independent contactors).
  • FLSA2021-4 (addressing tip pooling that includes servers (tip credit in some states – not MN) and hosts and hostesses (no tip credit).
  • FLSA2019-10 (addressing compensation for time spent in a truck sleeper berth while relived of duty).
  • FLSA2019-6 (whether virtual marketplace company is an employee or independent contractor).

Notably, between 2009-2017, during the Obama Administration, the DOL did not issue any Administrator opinion letters. From 2018-2021, the Trump Administration issued seventy (70) opinion letters. Accordingly, only time will tell whether the Biden Administration will issue any new opinion letters.