Hyperbole in Lawyer Land
Posted on 06-Apr-10 by The Timekeeper
You know how I keep advising business people they should listen to their employment attorney’s advice? Still a good thing for you to do, but if your lawyer has been carrying on as a few of his or her fellows have been lately, frankly I think you should also consider telling ‘em to go jump in a lake on at least this one issue.
Rant warning – read at your own risk
I just came across an article over at Human Resources Executive Online, quoting some employer-side attorneys about the new DOL announcement where they’re going to discontinue issuing specific Opinion Letters in favor of broader Administrator Interpretations.
To hear these guys carry on, this signals the end of civilization as we know it.
Malarky. Pure, unadulterated malarky.
Look, I understand plaintiff attorneys have been trolling for clients among disgruntled employees (and, in this time of massive layoffs, ex-employees) for some time now — and winning some high-profile cases, much to the chagrin of both the employers and their legal teams. And now these guys on the employer side are also trying to generate more business for themselves. Bully for them. Sauce for the goose, sauce for the gander and all that. But in my opinion, their extreme level of fear-mongering hyperbole is uncalled for.
It’s just Tea Party Lawyering. Don’t let pesky details like facts stand in your way; the important thing is to stir up unreasoning, hysterical panic by any means necessary.
For Pete’s Sake, Man, Get a Grip
For instance, James M. Coleman, a partner with Constangy, Brooks and Smith, when commenting on the discontinuation of Opinion Letters, is quoted as saying, “It’s a big move to end a practice that HR has engaged in for as long as the ages.”
Oh, really? As long as the ages?
Yeah, OK, so the DOL has been issuing Opinion Letters for awhile, but honestly, get a grip. It isn’t as though the first Opinion Letter was issued by the Founding Fathers or anything.
Look, as far as I know I’m about the same age as the practice of issuing Opinion Letters. And if anybody tries to claim I’ve been around “as long as the ages,” this vintage babe is fully prepared to go all medieval on them.
Besides, the DOL are not ending the practice of providing specific advice to employers. They’re just shifting it to the local Wage & Hour Division (WHD) offices — where it probably should have been all along. In fact, the announcement from the DOL specifically says:
Of course individuals with questions about the application of wage and hour laws to their particular situation may also talk to a Wage and Hour Division representative by contacting the office nearest them listed at http://www.dol.gov/whd/america2.htm or by calling the Division’s toll-free help line at 1-866-4USWAGE (1-866-487-9243) Monday-Friday 8 a.m. to 8 p.m. Eastern Time.
Hardly sounds as though they’re (in the words of the same lawyer) “slamming the door shut” on employers, does it?
Just Doin’ Their Job, Sir
Paul DeCamp, head of Jackson Lewis’ wage-and-hour practice group, is quoted in the same article as warning this “breaks with more than half a century of practice and amounts to an enormous power grab” on the part of the DOL.
[Aside: I should probably note Mr. DeCamp was a 2006 recess appointment of former President Bush as administrator of the WHD of the DOL. He was in charge of the Division during pretty much the same time period the Government Accountability Office says the Division mishandled many overtime and minimum-wage complaints and delayed investigating hundreds of cases for a year or more. But I digress.]
Breaking with practice? Sure, they absolutely are. And the point is…?
Look, when a practice is no longer workable, breaking with that practice is a wise move, not an “enormous power grab.”
I’m told the DOL had a backlog of something like 400 opinion letter requests. While I’m sure these attorneys would love to see the DOL tie up resources answering through a formal Opinion Letter every nit-picky question they or their clients sent over, regardless of whether it was actually a point of contention or (as often happened) simply a CYA maneuver on the part of the employer… the fact is, spending that kind of time and resources at the national level on answering a single employer’s query is not a good use of taxpayer dollars.
Besides, to the best of my understanding, Opinion Letters were simply a courtesy extended to employers, not codified into law — and, like any free courtesy practice, subject to discontinuation at any time. Just as, oh say for instance, offering a free initial consultation to prospects now wouldn’t obligate a law firm to offer free consultations to all prospects, now and forever more, right?
Or is this guy seriously claiming a procedure, once set in motion, can never be changed or stopped?
As to an “enormous power grab”? Puh-leeze.
The DOL’s job is to enforce labor laws. During the Bush administration, according to the GAO report, resources were actually being actively directed away from that task. Redirecting resources back toward enforcement is hardly a “power grab” on the part of the DOL. It just means they’re finally getting back to doing their job.
Again, as the DOL announcement itself says, this change offers “a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests.” Efficient? Productive? Doesn’t sound like such a bad thing to me.
And Maybe Opinion Letters Weren’t So All That After All
The WHD’s acting administrator during the final years of the Bush administration, Alexander J. Passantin, is now an attorney with employer-side law firm Seyfarth Shaw. According to the article, he’s posted an alert on the firm’s website, suggesting lawyers and their clients flood the DOL with Freedom of Information Act requests related to these new Interpretations.
I’m not sure how wasting taxpayers’ money on frivolous FIA requests just because you’re pissed off is supposed to be a good thing. Speaking as the mom of an elementary-aged child, this sounds to me more like a kindergarten temper tantrum than a reasoned, mature response. Sort of a grownup version of lying down on the floor in the breakfast foods aisle and screaming until Mom buys the Glazed Sugar Bombs cereal you want.
Reportedly, he notes (one assumes “with approval,” as he’s advocating using the same tactic now) this tactic was used against some Opinion Letters, back in the day, whenever employers didn’t like the Opinion expressed. Yep, hold your breath until you turn blue. Good one.
Now, waitaminnit.
I thought Opinion Letters were the best thing since sliced bread, the cat’s pyjama’s, the bee’s knees, all that jazz. Isn’t that why we’re supposed to be incensed, all up in arms and ready to storm the castle — because the DOL dared to discontinue them?
But now it turns out these legal eagles used spurious FIA requests against Opinion Letters, too?
Hmm. Could it be it’s not the format in which the information is communicated, but rather the content that’s the problem? One cannot help but wonder if the reaction would have been this hysterical had the first Interpretation come down in favor of the employers’ point of view.
I’m just saying. 
A Foolish Consistency is the Hobgoblin of Little Minds
Some employer-side lawyers complain this particular Interpretation appears to overturn an Opinion Letter issued back in 2006. Which might be a valid complaint… if it were not for the fact that in the past Opinion Letters sometimes contradicted each other without raising these sorts of dire warnings of the imminent collapse of free enterprise, capitalism and the whole of modern society.
I mean, that’s the whole point of (and problem with) Opinion Letters. They’re so specific to the individual situation, they can’t necessarily be applied to any other situation except in the most general sense. With even minor differences in the specifics, two Opinion Letters might reach what seem to be contradictory conclusions.
As a result, it’s entirely possible the Opinion Letter in 2006 was appropriate for the specific situation described, and the 2010 Interpretation is correct for a broader, more general audience. In other words, maybe they don’t actually contradict each other. (Or maybe the 2006 Opinion Letter was wrong to start with — after all, let’s not forget that was squarely during the time the GAO says the department was busy falling down on the job. Your call.)
This has always been true: because of their specificity, Opinion Letters written for others should never be relied upon as a guarantee what you’re doing is acceptable. Even these lawyers know that, despite their apparent reverence for the suddenly-sacred Opinion Letters.
In an age when many seem to be up in arms about what they see as wasteful government spending, it seems to me more than just a little disingenuous for anyone to excoriate the DOL for taking steps to make better, more efficient use of taxpayer dollars. Even if you’re just doing it to try to scare more people into becoming your clients.
Thus endeth the rant for the day.
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