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DOL withdraws proposal to move FLSA interpretive guidance out of the CFR

DOL withdraws proposal to move FLSA interpretive guidance out of the CFR

Rule Changes

Nine parts of wage-hour guidance stay in the Code of Federal Regulations, while the division keeps reshaping FLSA policy through bulletins

October 19th, 2026: WHD withdraws three tip-credit opinion letters

Overview

Updated Oct 24

The Labor Department's Wage and Hour Division withdrew its July 2025 proposal to pull nine parts of Fair Labor Standards Act guidance out of the Code of Federal Regulations. The October 7, 2026 notice leaves the guidance in place, and employers can still cite it, including for the Portal-to-Portal Act's safe harbor from liability.

The division is not done changing FLSA policy, though. On October 19 it withdrew three 1979-1985 opinion letters that underpinned the 80/20 tip-credit standard, and a field bulletin said it will judge tipped work by duties performed, not time percentages. A new proposal on tip credits for dual-job workers is still expected.

Why it matters

Employers keep relying on nine parts of FLSA guidance that courts weigh under Skidmore, not Chevron, after Loper Bright.

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Key Indicators

9
CFR parts retained
Nine parts of FLSA interpretive guidance stay in the Code of Federal Regulations.
6
Substantive comments
Two supported the proposal, four opposed it.
30
Comment period
The comment period ran 30 days, ending August 1, 2025.
15
Months from proposal to withdrawal
The NPRM was published July 2, 2025; withdrawal came October 6, 2026.
3
Tip opinion letters withdrawn
WHD withdrew 1979, 1980 and 1985 letters on the 80/20 tip standard on October 19, 2026.

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People Involved

AR
Andrew B. Rogers
Administrator, Wage and Hour Division
Signed the withdrawal notice

Organizations Involved

U.S. Department of Labor (DOL)
U.S. Department of Labor (DOL)
Federal Agency
Proposed and withdrew the rulemaking

The U.S. Department of Labor enforces the Fair Labor Standards Act and other workplace laws.
Wage and Hour Division
Wage and Hour Division
Federal Agency Subdivision
Withdrew the Subchapter B proposal; still changing FLSA guidance through bulletins and opinion-letter withdrawals

The Wage and Hour Division enforces the Fair Labor Standards Act and other workplace laws.

Timeline

July 2025 October 2026

5 events Latest: October 19th, 2026 · 3 weeks ago
Tap a bar to jump to that date

  1. WHD withdraws three tip-credit opinion letters

    Latest Regulatory Action

    Field Assistance Bulletin 2026-1 withdraws 1979, 1980 and 1985 opinion letters that underpinned the 80/20 standard for tipped workers, saying they could be misread. The division says it will judge dual-job work by duties performed, not time limits.

  2. Withdrawal notice published in Federal Register

    Regulatory Action

    The Federal Register publishes the notice withdrawing the July 2025 NPRM. The guidance stays in the CFR.

  3. Withdrawal takes effect

    Regulatory Action

    The DOL formally withdraws the proposed rule, concluding the rulemaking proceeding.

  4. Comment period ends

    Comment Period

    The 30-day comment period closes on August 1, 2025. WHD receives six substantive comments, two in favor and four opposed.

  5. DOL proposes removing nine parts of FLSA interpretive guidance from CFR

    Proposal

    The Wage and Hour Division publishes a notice of proposed rulemaking to remove nine parts of FLSA interpretive guidance from Subchapter B of the CFR.

Scenarios

1

DOL opens new rulemaking to modernize Part 779

Likely Resolves by End of 2027

Discussed by: The withdrawal notice itself, which says the DOL will 'undertake new regulatory action' if revisions are warranted

The DOL's withdrawal notice says it will 'continue to consider more effective means to modernize and update' the guidance. The original NPRM flagged Part 779 (retailers of goods or services) as the most outdated part, and WHD had already considered tackling it on its own. A new NPRM targeting Part 779 or another Subchapter B part would be the first concrete step.

2

Subchapter B guidance stays untouched

Possible Resolves by End of 2027

Discussed by: The withdrawal notice, which says the proposal 'no longer aligns with the Department's needs, priorities, and objectives'

The DOL could decide the current guidance is adequate and leave it in place. The withdrawal notice emphasizes the proposal no longer aligns with the Department's priorities, suggesting the status quo may hold for the foreseeable future.

3

Courts test WHD interpretations post-Loper Bright

Possible Resolves by End of 2027

Discussed by: Law and the Workplace analysis, which notes that after Loper Bright, courts follow WHD interpretations only if persuasive

After Loper Bright, courts must exercise independent judgment on agency interpretations. A federal court could issue a published opinion declining to follow a WHD interpretive rule from Subchapter B, testing the guidance's persuasive weight under Skidmore.

Historical Context

2 moments from history that rhyme with this story — and how they unfolded.

June 2024

Loper Bright Enterprises v. Raimondo (2024)

The Supreme Court overruled Chevron deference, holding that courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority. The decision expressly reaffirmed Skidmore deference for interpretive rules.

Then

Courts stopped deferring to agency interpretations of ambiguous statutes.

Now

Interpretive rules now carry only persuasive weight, judged by their thoroughness and consistency.

Why this matters now

The nine parts at issue are interpretive rules, which never got Chevron deference. After Loper Bright, courts weigh them under Skidmore, which is why keeping them in the CFR matters.

2000

Christensen v. Harris County (2000)

The Supreme Court held that interpretive rules do not get Chevron deference. The decision established that only legislative rules issued through notice-and-comment get Chevron deference.

Then

Agencies' interpretive guidance became subject to Skidmore's persuasive-weight standard.

Now

The distinction between legislative and interpretive rules became central to how courts treat agency guidance.

Why this matters now

The nine parts at issue are interpretive rules, which never got Chevron deference. The withdrawal keeps them in the CFR where courts and employers can find them.

Sources

(11)
+5
Law and the Workplace Law360 Policy Risk JD Supra Federal Register Federal Register Bloomberg Law HR Dive Ogletree Deakins VitalLaw Federal Register