On January 26, 2020, the Department of Labor’s (DOL) Wage and Hour Division withdrew three Opinion Letters released the week prior to Biden’s inauguration, including FLSA 2021-4 (discussed in the blog post here) as well as FLSA 2021-8 and FLSA 2021-9 (discussed in the blog post here). The three Opinion Letters provided a roadmap for businesses that were either classifying certain workers as independent contractors or seeking to expand tip pooling practices to cover more employees. At least for now, that roadmap cannot be used.  The DOL’s Wage and Hour Division explained that the now revoked Letters “were issued prematurely because they are based on rules that have not gone into effect.” As the Letters are now revoked, the DOL is taking the position that employers cannot rely on the Letters in defense of any pay practices they may seek to implement and/or defend.

Employers should expect more changes from the DOL in the coming days, weeks, and months. Stay tuned.