Opinion No. (1989)

RE: FAIR LABOR STANDARDS ACT QUESTIONS

ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR LETTER DATED AUGUST 21, 1989, ASKING FOR OUR EVALUATION AND OPINION REGARDING CERTAIN MATERIALS YOU HAVE ENCLOSED REGARDING THE APPLICATION OF THE FAIR LABOR STANDARDS ACT,29 U.S.C.A. 201 ET SEQ., TO A VARIETY OF EMPLOYEES IN THE POTEAU PUBLIC SCHOOLS. IT IS PROBABLY INSUFFICIENT TO SAY THAT THE ISSUANCE OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL IS NOT INDICATED IN A CIRCUMSTANCE WHERE WE ARE ASKED TO CONSTRUE THE APPLICABILITY OF LOCAL SCHOOL BOARD POLICIES TO VARIOUS INDIVIDUALS. THE MORE DIFFICULT PROBLEM HERE IS THAT THE QUESTIONS POSED ARE INVOLVED QUESTIONS OF FEDERAL LAW WHICH APPEAR TO BE CONFERRED TO THE ADMINISTRATIVE JURISDICTION OF THE UNITED STATES DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION. IT IS NOT USEFUL FOR THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA TO PRETEND TO BE ABLE TO GIVE AUTHORITATIVE ADVICE WITH RESPECT TO FLSA ISSUES. THE ADVICE PROVIDED BY THE ATTORNEY GENERAL CANNOT, IN MY VIEW, PROVIDE A "SAFE HARBOUR" FOR PUBLIC EMPLOYERS, ESPECIALLY THOSE WHO ARE NOT IN AN ATTORNEY-CLIENT RELATIONSHIP WITH THE ATTORNEYS GIVING ADVICE.

NONE OF THIS MEANS, HOWEVER, THAT THE POTEAU PUBLIC SCHOOLS IS WITHOUT ACCESS TO AUTHORITATIVE LEGAL ADVICE WHICH COULD CREATE SUCH A SAFE HARBOUR. UNDER THE FLSA, THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION IS EMPOWERED TO ADDRESS REQUEST FOR RULINGS AS TO THE APPLICABILITY OF THE ACT UNDER PRECISELY THE CIRCUMSTANCES COVERED IN YOUR LETTER. I WOULD URGE THE SCHOOL DISTRICT TO PURSUE THOSE AVENUES AS EXPEDITIOUSLY AS POSSIBLE. THE NAME AND ADDRESS OF THE ADMINISTRATOR ARE AS FOLLOWS:

PAULA SMITH

WAGE AND HOUR ADMINISTRATOR

U.S. DEPARTMENT OF LABOR

200 CONSTITUTION AVE., N.W.

WASHINGTON, D.C. 20210

TELEPHONE: (202) 523-8305

THERE IS AN OKLAHOMA CITY SUB-DISTRICT OFFICE OF THE WAGE AND HOUR DIVISION THE PHONE NUMBER FOR WHICH IS (405) 231-4545 SHOULD THE SCHOOL DISTRICT HAVE QUESTIONS ABOUT HOW ITS QUESTIONS MAY BE ADDRESSED AND RESOLVED INFORMALLY.

THE POTEAU PUBLIC SCHOOLS SHOULD BE AWARE, HOWEVER, THAT UNDER THE FLSA, THE DEPARTMENT OF LABOR (DOL) IS AUTHORIZED TO CONDUCT ITS OWN INVESTIGATIONS, TO MAKE ITS OWN FINDINGS, TO PURSUE ITS OWN LITIGATION AND THAT DOL DOES NOT REGARD ITSELF AS BOUND BY ANY POLICY STATEMENT OR AGREEMENT A PARTICULAR EMPLOYER MAY REACH WITH ITS EMPLOYEES UNLESS DOL HAS BEEN A PARTICIPANT THEREIN. FOR ALL OF THESE REASONS, I BELIEVE THE MOST USEFUL AND ULTIMATELY SATISFACTORY RECOURSE FOR THE POTEAU PUBLIC SCHOOLS IS TO ADDRESS ITS QUESTIONS TO THE ADMINISTRATOR.

(NED BASTOW)