How the New DOL Opinion Letter Program Could Impact Worker Misclassification Cases

by Mark Xiao and Pearl Berzin

What is an Opinion Letter?

Opinion letters are official written interpretations by government agencies regarding the application and enforcement of laws and regulations. Since they are written by government personnel, these letters provide an official guideline for the legal application of existing regulations.

“Opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance,” said Deputy Secretary of Labor Keith Sonderling.

Department of Labor Opinion Letter Program

The Department of Labor (DOL) recently launched an opinion letter program to ensure legal interpretations are easily accessible for workers and employers alike. This program spans five DOL agencies, including topics related to wages and hours, worker safety, employee benefits, and veteran employment. The DOL website includes links to each of the five agencies, where you can find past opinion letters for reference.

Not only does this new program make past opinion letters widely accessible, but it also gives clear instructions for how to request an opinion letter based on a specific inquiry for which the existing opinion letters do not cover. Depending on the inquiry, the process of requesting an opinion letter may differ; however, the submission process itself is easy as most agencies receive submissions via email, online forms, or physical letters.

A request for a DOL opinion letter should include the specific details of the situation in question as well as the applicable law. Before submitting a request, the requester should ensure that the issue has not already been addressed in a previous opinion letter.

Opinion Letters Can Provide Employment Status Guidance

Employers and workers can request opinion letters to clarify employment status. Published opinion letters are also a resource for determining independent contractor status.

Most recently, the DOL published an opinion letter regarding virtual marketplace companies like Uber or TaskRabbit. The document clearly outlines the five factors for determining the classification of a worker as an employee vs. an independent contractor. In addition to outlining the legal principles of the Fair Labor Standards Act (FLSA), the letter applies the law to service providers for virtual marketplace companies to determine their classification.

Opinion letters are a crucial resource for workers to determine if they are correctly classified under FLSA guidelines. By keeping workers well-informed of their rights, they can decrease the risk of misclassification and ensure workers are receiving the compensation and benefits they deserve.

The Role of Opinion Letters in Court

Although opinion letters are not legally binding, they can play an essential role in worker misclassification disputes as they provide official written explanations of FLSA compliance based on case-specific circumstances. Opinion letters can also be used as a good-faith defense to claims under the FLSA as well as providing authoritative guidance in such cases.

What is Worker Misclassification?

Worker misclassification is a common violation that occurs when an employee is incorrectly classified as an independent contractor or vice versa. Employees and independent contractors are viewed differently under the law, with employees maintaining the legal right to minimum wage, overtime pay, unemployment benefits, and workers’ compensation in the case of injury. On the contrary, independent contractors are not legally required to receive these benefits because they are considered to be in control of their performance, skills, wages, and hours. The degree of independence and control a worker has over their work determines whether they are an employee or an independent contractor.

Worker misclassification can be detrimental as it can result in underpayment and lack of benefits that the misclassified workers are otherwise entitled to. If you believe that you may be misclassified in your current employment, it is possible to attain backpay for overtime and hourly work through the legal system.

Get Legal Help Now

Miller Shah LLP offers comprehensive legal support to help navigate worker misclassification whether you are an employer or a worker. We have extensive experience defending misclassified workers and ensuring employer compliance. Contact us today for a consultation.