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Seeking copy of old opinion letter

I'm looking for a copy of DOL opinion letter WHD Opinion Letter, 1994 WL 1004879 (Nov. 7, 1994) and it's not on their site that I can find. I've sent them a tweet asking for it, but does anyone have a file copy? You can email it to me at payroll at douglascountyks dot org. Thanks!


  • If it is not available it has likely no longer valid and CA-DIR wants to forget they ever issued it. I have seen that done before. They normally just move inactive guidance to an inactive section but there are several very famous (infamous) opinion letters to which they have done what you describe.

    My only suggestion is to key word search some of your key words on the Internet. Works or it does not. Google used to keep old copies of prior instances of the Internet but I have not seen them do that in a long time now.

  • DOL often references old opinion letters in new opinion letters and attaches copies of the old ones to the new ones that are sent to the requester. Unfortunately, they do not attach them to the posted copes of the new letters. I don't think they are hidden - obsolete or superceded letters are withdrawn and removed from the website - for example, try to view Administrator's Interpretation Letters FLSA 2016-1 (Joint Employment) or FLSA 2015-1 (Suffer or permit to work standard) (note: The under the Obama Administration, the WHD issued general guidance in Administrator Interpretation letters rather than fact specific guidance in opinion letters)

    IMHO the reason the old letters are not up is that they have not been digitized yet and/or screened for obsolescence.

  • See for a reference to the letter - I think the footnotes speak volumes

    29 C.F.R. § 785.48(b); see also Dep't of Labor, Nov. 7, 1994 Opinion Letter, 1994 WL 1004879, at *1 (opining that "a practice of rounding to the nearest one-half hour . . . would not be inconsistent with the practices outlined in" the federal regulation).15 Although "no New York statute or regulation addresses the permissibility of rounding policies, New York's Department of Labor generally follows the FLSA and related regulations." Gordon v. Kaleida Health, 299 F.R.D. 380, 405 n.25 (W.D.N.Y. 2014).

    Note that the opinion letter is merely "opining" as to potential consistency with the law and not stating absolutely that rounding to the nearest half hour is actually going to be allowed. Furthermore,

    1. See also Dep't of Labor, Nov. 7, 1994 Opinion Letter, 1994 WL 1004879, at *1 ("It should be noted, however, that where an employer arbitrarily fails to pay an employee for any part of the employee's fixed or regular working time, however small, this would be considered a violation of the FLSA.") (emphasis added).

    That is, the rounding method may be "not inconsistent" with the law, but if it is not also factually (not just facially) neutral and work out "on average" that employees are paid for all hours worked, then it is not allowable.

    In case you are interested, here is what the court found in this case.
    It is undisputed that until late January 2015, Defendants rounded their employees' hours to the nearest half hour each day and then paid wages only for those rounded hours, instead of actual hours worked. Pls.' 56.1 ¶ 34.16 Plaintiffs argue that this policy resulted, over a period of time, in a failure to compensate them properly for all the time they actually worked, in violation of the FLSA and NYLL. Pls.' Summ. J. Mem. at 6-7; Pls.' Summ. J. Reply Mem. at 5-6. Defendants contend that they employed a "facially neutral time rounding policy" that, "on average, favor[ed] neither overpayment nor underpayment," and thus their practice was not unlawful. Defs.' Summ. J. Opp'n Mem. at 7.17

    Defendants failed to preserve records of any hours worked by their employees, actual or rounded, prior to August 2014. Pls.' 56.1 ¶ 31. And those records maintained since August 2014 largely contain only rounded, not actual, hours. See, e.g., Pls.' Summ. J. Mem., Exs. E-F. Plaintiffs may therefore satisfy their burden on their FLSA claim by submitting "sufficient evidence to show the amount and extent of [their uncompensated work] as a matter of just and reasonable inference." Kuebel, 643 F.3d at 362 (quoting Anderson, 328 U.S. at 687). As to Plaintiffs' NYLL claim, Defendants bear the burden of proving that Plaintiffs were paid proper wages. NYLL § 196-a(a).

    Plaintiffs argue that Defendants' limited time records show that Defendants' policy resulted in a failure to pay compensation for all hours worked. Pls.' Summ. J. Mem. at 6-7. For example, Plaintiffs point out that Lazaro Chanes Sanchez's hours were rounded down to the nearest half hour almost every day during the time period in which records for both his actual and rounded hours are available. Id. at 7. Indeed, Sanchez's hours were rounded down on 17 out of those 24 days. Id., Ex. I. Other employees' records show similar trends. See id. (showing that David Gabriel's hours were rounded down on 23 out of 30 days), Exs. E-F. Although Plaintiffs have not calculated the net amount of uncompensated time discernible from these records, the Court finds that Plaintiffs have satisfied their burden of establishing a "just and reasonable inference" that they, over time, were denied wages for time actually worked.

  • IMHO the reason the old letters are not up is that they have not been digitized yet and/or
    screened for obsolescence.

    Pat, I am going to respectively disagree with you on this point. I am talking about CA-DLSE only, not federal DOL or anyone else. I am not talking about all the time, just some of the time.

    In the 1980s we were both writing for the same publication. CA-DLSE wrote an opinion letter very clearly stating that vacation was fully vested to Salaried Exempt employees and could not be offset as allowed under 29 CFR 541.602 under CA law. CA Chamber of Commerce went ape**** very publicly and widely covered in the general media. The head of CA-DIR (not CA-DLSE) had a public news conference, formally withdrew the opinion letter and publicly apologized for the error. Then formally withdrew the opinion letter.

    I had kept hard image copies of the original opinion letter plus the withdrawal letter, plus URLs to their locations. The original documents were then moved into a non obvious place but I Google found them and bookmarked the new locations. A year later we are both working for the same publisher, and I talk to the managing editor, give him(?) a copy of the documents and what I just told you. He said it would make a good article. I tried one more time to Google search everything, came up dry, then called up CA-DLSE. They claimed there never was such a document. I offered to fax it to them and did. They did not return phone calls but I eventually got them on the phone. They claimed their never was such a document, and that I never faxed them a copy. I asked for their name, they asked why, I said to put in my article, they asked WHAT ARTICLE!!/ I told them. They put me on hold for a long time, then some guy, maybe a lawyer, maybe just a******, hard to tell the difference, told me it was against the law for me to publish the article. I asked him for the legal reference, he declined, just kept ordering me to not publish the article. I got his name and told him that was managing editors decision. He wanted that name and phone number, which I gave him, then later our managing editor told me to drop the story.

  • Hello David - I saw that you were talking about CA - but the opinion letter in question is a federal WHD document. I'm not sure why CA has such a problem with admitting to a change in policy or opinion, but the federal WHD does not seem to have a similar issue - While they will take down a document that no longer represents their policy, they at least, in the case of the administrator interpretations, left the document numbers up and indicated they had been withdrawn. They did not claim the documents never existed. WHD continues to reference older opinion letters - For example, FLSA2019-6 references WHD Opinion Letter, 1994 WL 1004879 (Nov. 7, 1994) (but does not offer a copy) - that is the one that JJacob was looking for, and Opinion Letter FLSA 2019-3 references WHD Opinion Letter FLSA-143 (May 20, 1975).
    FLSA opinion letters are listed on the website back to 2001 - FMLA letters got back to 1993, but there are a lot fewer of them.

  • Pat:

    My apologies. I failed to accurately read the post and responded to the wrong question. Then failed to re-read it when you disagreed with me.

  • No need to apologize David - I get long winded - I was not able to locate a copy of that particular opinion letter on the internet - I was searching for another one and found a reference in Westlaw - but I am not a subscriber - so a payroll service might have a copy buried in it somewhere. I did find a copy of the one I was searching for that someone posted in the Labor Law discussion board. Not really related to what we are discussing. here