Update FLSA Memos After DOL's Withdrawal

The withdrawal leaves the text in place

Your FLSA exemption memo needs a citation update. On October 7, 2026, the Wage and Hour Division withdrew its July 2025 plan to remove nine FLSA interpretive parts from the CFR, leaving the interpretive text in place.

The nine parts would have cut about 229 pages from the 905-page WHD chapter, a 25% reduction.

The July 2025 proposal had a 30-day comment period, drew six substantive comments split two in favor and four opposed, and led to ten denied extension requests.

The memo update is a citation and file hygiene task with three steps: cite the live CFR part, add the Loper Bright/Skidmore caveat, and log the facts and reliance that support a good-faith defense.

The legal weight of the surviving text changed in June 2024, when the Supreme Court's Loper Bright Enterprises v. Raimondo decision ended the Chevron deference framework, so courts owe no special deference to an agency's reading of an ambiguous statute.

Treat the agency text as useful, dated, and contestable. The memo should show that you read the live text, understood its limits, and applied it to the job description. A later reader should be able to follow your reasoning from the regulation to the duties without filling gaps.

Cite the live text before you argue the exemption

Cite the live CFR part that matches the exemption or coverage question. The citation block should show the part, the section, the date checked, and the exemption applied.

Use the current CFR text, not the withdrawn proposal. If an old memo quoted a page that no longer exists, replace the quote with the current section.

Part 779 includes material that has not been revised since 1970 and still points to a $1.60 minimum wage. When the text is stale, pair it with the statute, regulations, and controlling case law.

Compare the old memo to the current text before finalizing. Note changed definitions, examples, or thresholds. If the old memo predates the withdrawal, add a short note that the classification was reviewed after the withdrawal and the citation was refreshed.

Add the Loper Bright/Skidmore caveat where the memo relies on agency guidance

Keep the caveat short: the agency's view helps, but the court decides the statutory question. This keeps the memo honest without turning it into a treatise.

Do not overstate the caveat. The agency text can still be strong evidence. The caveat should explain its legal status, not dismiss it.

Make the caveat specific enough to survive a later challenge. Name the statute, the ambiguity, and the reason the agency's view is useful.

Where the memo relies on a WHD bulletin, say why you found it persuasive. Note the date, the facts it assumes, and the parts of your operation that match or differ.

The Portal-to-Portal Act amendments, codified at 29 U.S.C. § 259, let employers use WHD's FLSA interpretive bulletins to support a good-faith defense.

Keep the Portal-to-Portal point in the memo. It connects the citation to the defense.

Build the good-faith record as part of the memo

Build the record that shows you relied on the guidance in good faith. The appendix should answer these questions:

• What duties did the employee actually perform?
• What pay basis and hours supported the classification?
• Which documents did you review, and when?
• Which facts were missing, and what will you verify?
• Which legal basis did you apply, and why did it fit?

Include the date you checked the CFR text, the names of the people who gave you the facts, and the exemption you applied with the reason it fit the job.

Where a fact is missing, say so and state what you will verify. The record should let a later reader see that you did not guess. Treat the appendix as the part of the file that survives review.

A clean wage hour compliance file should show the reasoning, not just the conclusion. Preserve the memo with the classification file, not in a shared chat thread.

Keep the file current enough that a new reviewer can repeat your steps. For a new role, run the same steps before pay begins. Update it when duties, pay, or the law change.