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

Overview

Updated 45 minutes ago

The U.S. Department of Labor's Wage and Hour Division published a notice on October 7, 2026, withdrawing its July 2025 proposal to strip nine parts of Fair Labor Standards Act interpretive guidance from the Code of Federal Regulations. The guidance stays where it has been for decades.

The proposal would have moved interpretive rules on motor carriers, retailers, seamen, and petroleum distributors into subregulatory guidance outside the CFR. Employers can keep relying on the guidance, including for the Portal-to-Portal Act's safe harbor from FLSA liability.

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

CFR parts retained

Nine parts of FLSA interpretive guidance stay in the Code of Federal Regulations.

Substantive comments

Two supported the proposal, four opposed it.

Comment period

The comment period ran 30 days, ending August 1, 2025.

Months from proposal to withdrawal

The NPRM was published July 2, 2025; withdrawal came October 6, 2026.

Voices

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People Involved

Andrew B. Rogers

Administrator, Wage and Hour Division

Signed the withdrawal notice

Organizations Involved

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

Federal Agency Subdivision

Proposed and withdrew the rulemaking

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

Timeline

July 2025 October 2026

4 events Latest: Today

Tap a bar to jump to that date

October 2026
Withdrawal notice published in Federal Register
Today Regulatory Action

The Federal Register publishes the notice withdrawing the July 2025 NPRM. The guidance stays in the CFR.
Today
Withdrawal takes effect
Regulatory Action

The DOL formally withdraws the proposed rule, concluding the rulemaking proceeding.
Yesterday
August 2025
Comment period ends
Comment Period

The 30-day comment period closes. WHD receives six substantive comments, two in favor and four opposed.
August 1st, 2025
July 2025
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.
July 2nd, 2025

Scenarios

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.

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.

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.