DOL Scraps Plan to Eliminate 450+ FLSA Interpretive Regulations

Takeaways

• DOL withdrew its proposal to remove more than 450 long-standing FLSA interpretations from the Code of Federal Regulations.
• Employers may continue relying on familiar guidance addressing key coverage, exemption, and industry-specific issues, including to demonstrate good-faith efforts to comply with federal law.
• The guidance remains nonbinding on employers and courts, and employers should monitor future DOL rulemaking to modernize or revise it.

Related links

• DOL Proposes to Decodify 450+ FLSA Interpretive Guidance: What Does It Mean for Employers?
• Statements of General Policy or Interpretation Not Directly Related to Regulations
• 91 Fed. Reg. 64129, Withdrawal of Proposed Rule

Article

The Department of Labor’s (DOL) Wage and Hour Division (WHD) has withdrawn a July 2025 proposal to remove from the Code of Federal Regulations (CFR) more than 450 Fair Labor Standards Act (FLSA) interpretive regulations that were not subject to notice and comment when issued.

The DOL announced its change of course in an Oct. 7, 2026, Federal Register notice, but it provided little explanation. It simply stated the rulemaking “no longer aligns with the Department’s needs, priorities, and objectives.”

Proposed Rule

The DOL’s 2025 proposal would have relocated long-standing interpretive guidance to an appendix in DOL’s Field Operations Handbook, used by DOL investigators when enforcing the FLSA. The proposal targeted “subregulatory” rules that were not implemented or amended through formal notice and comment rulemaking. The agency explained that because these interpretive rules and policy statements do not carry the force and effect of law, separating them from binding rules would give employers more clarity, reduce the risk that courts would misread their legal weight, and keep employers from feeling “compelled” to follow rules that are not legally binding.

Many of these regulations, however, are referenced by employers to ensure FLSA compliance. Among the significant provisions that DOL had slated for removal were the following:

• Part 776 (general FLSA coverage, including the construction industry)
• Part 779 (retail and service establishments, including the Section 7(i) overtime exemption for certain commissioned employees)
• Part 782 (the Motor Carrier Act overtime exemption)
• Part 789 (the child labor “hot goods” provision and reliance on a producer's written assurances of compliance)

Other key guidance, such as calculating the regular rate (Part 778), hours worked (Part 785), and independent contractor status (Part 795), would have stayed in Subpart B of the CFR because those rules had been issued through notice and comment.

The proposal garnered only six substantive comments: two supported the proposal and four opposed it. Commenters questioned whether the change was needed and whether it would further the stated goal of providing more clarity for stakeholders. Some raised concerns about how removing long-standing provisions would affect specific industries.

After reevaluating the proposal, the DOL concluded that moving forward no longer aligns with agency priorities. The rulemaking is now formally discontinued.

Status Quo

With the proposal withdrawn, the interpretive rules will continue to appear in the CFR that WHD has maintained since the 1940s. This brings some stability to employers, especially retailers, motor carriers, construction contractors, and other industries that look to the subregulatory guidance to ensure compliance with federal law. Employers that align their pay practices with these provisions can also continue to cite them to show they acted in good faith, for purposes of minimizing potential liability under the FLSA. Even so, these provisions remain interpretive and do not have the force of law. Courts may give them less weight than formal regulations, especially as courts no longer defer to agency interpretations.

Still, many of these long-standing Subpart B rules are dated and could benefit from substantial revision. DOL has signaled that modernizing this guidance remains on the agenda. In issuing its 2025 proposed rule, WHD said it reserved the right to make changes without additional notice-and-comment, leaving employers without an opportunity to weigh in. In its latest announcement, however, DOL stated simply that any future revisions to Subpart B would be made through “new regulatory action,” suggesting the agency would invite public input.

Focus on Compliance Assistance

In a Sept. 8, 2026, statement, then-acting secretary of labor Keith Sonderling stressed the agency’s commitment to “clear, practical compliance assistance” that “gives all stakeholders the certainty they need to comply with the law.”

Employers should watch for future WHD rulemaking activity and be prepared to provide input regarding the impact of any new rulemaking on their business.

Please contact your Jackson Lewis attorney if you have questions about the DOL’s rulemaking or about wage and hour compliance in general.