• Federal opinion letters provide a "liability shield" for employers, but also benefit courts, workers, unions and other stakeholders despite being increasingly politicized, according to a Missouri Law Review article written by Keith Sonderling, commissioner at the U.S. Equal Employment Opportunity Commission, and Bradford J. Kelley, his chief counsel.
• Federal labor and employment law regulators began to issue opinion letters following 1947 legislation by Congress, but their usage varied widely under recent administrations, with the second Bush administration's Wage and Hour Division issuing a record 318 letters and the Obama administration moving away from practice in 2010, Sonderling and Kelley wrote. EEOC has issued five opinion letters since April 2020.
• The authors also made suggestions for improving opinion letters, including modeling them after federal court decisions and making them "as convincing as possible" to ensure they persuade the public and receive deference from courts. Agencies also could issue opinion letters before proposing new rules to provide stakeholders the chance to weigh in on positions to be addressed via rulemaking. The authors also called on state labor and employment agencies to issue their own letters.

Dive Insight:

Debate over the value of opinion letters — and which parties truly benefit from them — has become one of the more noticeable political divides among members of the U.S. Department of Labor, EEOC and related federal agencies in...

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