On March 24, 2010, the U.S. Department of Labor’s Wage and Hour Division announced that it will begin issuing “Administrator Interpretations” of the statutes and regulations administered by the division, which include the Family and Medical Leave Act and the Fair Labor Standards Act. According to the announcement, these Administrator Interpretations “will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision at issue,” and will clarify the law “as it relates to an entire industry, a category of employees, or to all employees.”

While on its face this may appear to be a purely administrative change, the new “Administrator Interpretations” marks a clear effort to expand the Wage and Hour Division’s power to shape federal employment law without the need for Congressional approval or the lengthy notice and comment process associated with formal rulemaking. Of course, like the DOL's prior FMLA opinion letters, the new Administrative Interpretations cannot directly change existing statutes or regulations. However, they will clearly guide the Division’s enforcement activities, and will likely be treated with at least a certain level of deference by the courts, particularly as to unsettled areas of law.

The Department issued its first Administrator Interpretation on March 24, interpreting the Fair Labor Standards Act and finding that mortgage loan officers generally do not meet the requirements of the administrative exemption. This interpretation is in direct contrast to an earlier opinion letter issued in 2006 under the prior administration, holding that mortgage loan officers were exempt administrative employees.