March 31, 2017

When businesses ask federal wage enforcers for specific legal advice from the Trump administration, they’re likely to get answers for the first time in eight years. 

High-powered attorneys expect the Labor Department to revive opinion letters for their clients, a practice that critics say amounts to “get out of jail free” cards for employers facing minimum wage or overtime claims in court. The letters, a common compliance tool in the previous Republican administration, enable companies to present the documents before a judge or investigator as a “good faith” defense. 

“It’s no secret that the opinion letter process largely serves the interest of employers; it gives them a legal defense if their practices comport with what the opinion letter says, even if the Department of Labor was wrong in what the opinion states,” Michael Hancock, who managed the Wage and Hour Division process for the final four years of George W. Bush’s term, told Bloomberg BNA. “It offers a serious and real significant defense to employers.” 

A career attorney for Bush, Hancock went on to become a WHD political appointee under President Barack Obama. That’s when the division quickly terminated the opinion letters in favor of issuing broader interpretations intended to improve efficiency without draining resources. 

Hancock, now representing plaintiffs at Cohen, Milstein, Sellers & Toll in New York, acknowledged it can be a challenge for workers’ attorneys to overcome an opinion letter that deems a business practice in compliance with the Fair Labor Standards Act. 

This article originally appeared in Bloomberg BNA.