The Controlling Regulation, 29 C.F.R. § 531.56(e), is Not Ambiguous, and Therefore this Court Should Not Defer to the DOL’s Interpretative Commentary Found in Sub-Regulation § 30d00(e) Pursuant to 29 U.S.C. § 204, the U.S. Department of Labor has promulgated regulations interpreting the FLSA. These include 29 C.F.R. § 531.

Rather than establishing an entitlement to judgment on the pleadings, the Fund’s Motion only highlights that judgment is due to be granted to the Class. The Fund did not meet the PPA requirements and thus the Contingent Amendment violates ERISA’s anti-cutback rule, 29 U.S.C. § 204(g). C. No Deference is Due to be Afforded on Questions of Statutory Compliance.

Specifically, the FLSA authorizes DOL to regulate minimum wage (29 U.S.C. § 206), overtime (§ 207), wage-related recordkeeping (§ 211), and child labor (§§ 212 & 213(c)). See 29 U.S.C. §§ 204(a)-(b), 216(c), 217. See also Donovan v. Crisostomo, 689 F.2d 869, 872 n.3 (9th Cir. 1982) (“Section 16(c) of the FLSA authorizes the Secretary only to seek unpaid minimum wages or overtime compensation.”)

As the Secretary of Labor recently explained: 14 Section 16(b) of the FLSA unambiguously provides employees the right not to have their statutory claims litigated without their written consent. The Secretary, as the official responsible for the administration of the FLSA (see 29 U.S.C. 204), has a significant interest in protecting this clearly delineated employee right. . . . The advance written consent requirement, as distinguished from procedural provisions in the FLSA, goes to an employee's fundamental right not to be included as a plaintiff in a lawsuit or arbitration.