‘Decodifying’ interpretive rules: A regulatory shift in wage and hour enforcement

On July 2, 2025, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) proposed a rule that plans to significantly reshape the regulatory landscape under the Fair Labor Standards Act (FLSA). The proposed action seeks to remove over 450 interpretive provisions from the Code of Federal Regulations (CFR) and relocate them to the WHD’s Field Operations Handbook (FOH). The proposed rule—titled Statements of General Policy or Interpretation Not Directly Related to Regulations—seeks to clarify the legal status of various FLSA-related provisions historically codified in Subchapter B of Title 29 in the CFR. Though long treated as regulatory guidance, these provisions weren’t promulgated through formal notice-and-comment rulemaking and therefore lack the force of law under the Administrative Procedure Act (APA).

Legislative rules v. interpretive rules

The WHD’s rationale for the proposal centers on the distinction between legislative and interpretive rules. Legislative rules are binding and enforceable, having been promulgated through formal rulemaking procedures. Interpretive rules, by contrast, reflect the agency’s understanding of statutory provisions—or in other words, guidance—and further, does not carry the force of law.

However, by codifying interpretive rules in the CFR alongside legislative ones, the DOL believes it has inadvertently created confusion for courts, employers, and the public. The proposed “decodification” is designed to eliminate this ambiguity and reinforce the legal boundaries between binding regulations and nonbinding guidance.