On July 2, the Department of Labor (DOL) issued a notice of proposed rulemaking in which it proposed to remove from the Code of Federal Regulations (CFR) all the interpretive rules and policy statements contained in Title 29, Chapter V, Subchapter B of the CFR. These portions of the CFR deal with the Fair Labor Standards Act (FLSA) and include a wealth of information that is useful to judges and plaintiffs’ lawyers in interpreting the FLSA, as well as to regulated entities in promoting effective legal compliance. This proposed change would remove approximately 485 separate regulations from the CFR on an incredibly wide range of FLSA-related topics.

On August 1, NELA filed comment on the proposed rule, calling on the DOL to take a less arbitrary approach to its interpretive regulations and emphasizing the decades-long reliance of judges, attorneys, and regulated entities on the substantial body of accumulated departmental expertise contained in these portions of the CFR. The CFR provisions at issue have been referenced by judges in over 1,000 FLSA opinions. NELA also pointed out that these interpretive rules have stood the test of time, such that they have demonstrated their “power to persuade” by virtue of the “experience and informed judgment” which they reflect, and that they are thus entitled to the deference which courts may accord to such subregulatory guidance under Skidmore v. Swift & Co.

NELA would like to extend our sincere thanks to Michael Scimone (Outten & Golden LLP, NY) for leading the drafting of the comment and to Peter Winebrake (Winebrake & Santillo, LLC, PA) for his contributions.