On October 7, 2026, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) published a notice withdrawing its July 2025 proposal to strip nine parts of longstanding Fair Labor Standards Act (FLSA) interpretive guidance out of the Code of Federal Regulations (CFR).  The proposal is dead, and the guidance stays right where it has been for decades.

How We Got Here

Since the 1940s, WHD has published “Statements of General Policy or Interpretation Not Directly Related to Regulations” in Subchapter B of its chapter of the CFR (29 C.F.R. Parts 775–795).  These are largely “interpretive bulletins”—pronouncements of the agency’s views that, in contrast to “legislative” or “substantive” rules (commonly called “regulations”), don’t have to go through the notice-and-comment rulemaking process.  (The Part 541 “white-collar exemption” regulations in Subchapter A are a good example of the latter.)  Unlike regulations, which can have the force and effect of law, interpretive bulletins and rules are entitled only to Skidmore deference.  That is, the weight courts afford them depends on “the thoroughness evident in [their] consideration, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade.”  Employers can also rely on them for a good-faith defense under the Portal-to-Portal Act amendments to the FLSA (29 U.S.C. § 259).

In a notice of proposed rulemaking (NPRM) published on July 2, 2025, WHD proposed removing every Subchapter B part that had never gone through the notice-and-comment process.  The concern was that employers (and courts) might mistake interpretive guidance for binding law just because it sits in the CFR.  Nine parts were on the chopping block:

• Part 775 (general);
• Part 776 (general coverage);
• Part 779 (retailers of goods or services);
• Part 782 (motor carrier exemption);
• Part 783 (seamen);
• Part 784 (fishing and aquatic products);
• Part 789 (written assurances under the “hot goods” provisions);
• Part 793 (radio and television station employees); and
• Part 794 (wholesale or bulk petroleum distributors).

That’s roughly 229 of the 905 pages in WHD’s chapter—a 25% cut.  The content would have moved to an appendix to WHD’s Field Operations Handbook—its “operations manual” for investigators and staff that the public can consult for guidance.  The exception was the plainly obsolete material in Part 779, much of which hasn’t been touched since 1970 and still refers to a $1.60 minimum wage.  Parts 778 (overtime), 785 (hours worked), 790 (Portal-to-Portal Act), 795 (independent contractors), and a few others would have stayed put because they’d been through notice and comment at least in part.  WHD also reserved the right to revise the relocated guidance later without any further public comment.

The Withdrawal

The comment period ran just 30 days.  WHD received only six substantive comments, two in favor and four opposed, and denied ten requests to extend the deadline.  More than a year later, WHD says the proposal “no longer aligns with the [DOL’s] needs, priorities, and objectives.”  It also points to commenters’ concerns about how removing longstanding provisions would affect specific industries.  It’s hard to argue with that.  If you advise motor carriers, retailers, or petroleum distributors, for example, those interpretive rules are part of your playbook.

The DOL isn’t closing the door entirely.  It says it will “continue to consider more effective means to modernize and update” the guidance and will “undertake new regulatory action” if revisions to any Subchapter B part are warranted.  We wouldn’t be surprised to see Part 779 first in line for an update.  The NPRM itself flagged it as the most outdated part, and WHD had already considered tackling it on its own.

Where Loper Bright Fits In

For 40 years, the Supreme Court’s Chevron doctrine told courts to defer to an agency’s “permissible” reading of an ambiguous statute.  In June 2024, Loper Bright Enterprises v. Raimondo ended that.  Courts must now “exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” and they “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

Here’s the thing, though:  Loper Bright doesn’t change the Skidmore analysis.  Interpretive rules never got Chevron deference in the first place (the Supreme Court said as much in Christensen v. Harris County in 2000), and Loper Bright expressly reaffirmed Skidmore.  Agency interpretations, the Supreme Court said, still “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”  What Loper Bright did was level the playing field.  Unless Congress has expressly delegated authority to WHD (like the power to “define and delimit” the white-collar exemptions), WHD’s reading of the FLSA is judged by the same Skidmore standard, whether it appears in a notice-and-comment regulation or a decades-old interpretive bulletin.  Either way, it rises or falls on the quality of its reasoning.

Takeaways

So what should employers do?  For now, nothing.  All nine parts remain in the CFR, and employers can continue to look to them for guidance (and to rely on them, in good faith, for purposes of the Portal-to-Portal Act’s safe harbor from FLSA liability).  That said, they aren’t binding on courts.  After Loper Bright, a court will follow WHD’s interpretation only if it’s persuasive.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.