Opinions Do Count

April 23, 2012Articles New Jersey Law Journal

Statutes and regulations cannot possibly provide guidance for every situation. As a result, any agency charged with enforcing a particular statute, such as the New Jersey Department of Labor and Workforce Development, must also interpret the law. Agency interpretations range from the informal, where an investigator will give his or her “opinion” (verbally) on whether a certain course of conduct is legal, to the formal, where the agency issues an Opinion Letter discussing how the law applies to the facts set forth by the party requesting the letter.

These letters are often given deference by state and federal courts and allow an employer the benefit of a safe harbor. Even if a court determines that the agency “interpretation” is incorrect or, indeed, illegal, the employer will escape liability for all preceding conduct as long as the employer acted consistently within the parameters of the letter. Moreover, statutes themselves often contain “safe harbor” provisions, which give immunity to an otherwise offending employer who relies upon an interpretation or enforcement position of a given agency. Both the Fair Labor Standards Act and New Jersey Wage Hour Law contain such provisions (See 29 C.F.R. §790.13; N.J. Stat. § 34:11-56a25.2).

However, there is one caveat: Agency interpretations are only relevant or persuasive when the statute or regulation is vague or unclear. There, the agency performs the role of a gap filler by interpreting the statute, publishing that interpretation and clarifying rights and obligations. If the regulation is clear, however, no interpretation is warranted. For example, the New Jersey Wage and Hour Law (NJWHL) sets the state minimum wage at $7.25 per hour. Courts would not defer to an agency interpretation placing the minimum wage at less than $7.25 per hour. The vagueness of a statutory provision allows a court to adopt the interpretation of the agency charged with enforcing and interpreting the statute at issue.