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DOL Takes Another Look at the Overtime Regulations

The Department of Labor (DOL) recently issued a request for information (RFI) relating to the 2016 amendments to the Fair Labor Standard Act’s (FLSA) overtime regulations. The DOL seeks information “to aid in formulating” revisions to the amended regulations that remain subject to a nationwide injunction. Once again, companies face uncertainty regarding impending changes to the FLSA’s regulations.

The history regarding the amendments has been the subject of recent posts, and the background is useful here. In 2016, the DOL finalized new regulations that more than doubled the minimum salary required to satisfy the “white collar” exemptions under the FLSA. The minimum salary required for executive, administrative and professional employees to be exempt from federal overtime laws was raised from $23,660 per year ($455 per week) to $47,476 per year ($913 per week), effective December 1, 2016. At the eleventh hour, a federal court in Texas issued an injunction precluding the new regulations from taking effect. The DOL, under President Obama, immediately filed an appeal, which is scheduled for oral argument on October 2, 2017. However, in connection with appellate briefing, the DOL, under President Trump, did not advocate for the new salary level. Instead, the DOL indicated that it intended to engage in further rulemaking. Given this background, it is unclear what the appellate court will decide in the pending appeal.  

On July 26, 2017, citing President Trump’s deregulation agenda, the DOL published the RFI. The RFI seeks public comment on a variety of issues, including the following:

  • What method should be used to establish the salary level?
  • Should there be multiple salary levels that are established by taking into account factors such as geographic region, metropolitan area and size of the employer?
  • Should changes be made to the duties test?
  • Should exempt status be determined solely by the nature of the duties?
  • Should different salary levels apply to each exemption?
  • How were companies and employees affected by actions taken to prepare for the 2016 increase in the salary level?
  • Does the 2016 salary level “eclipse the role of the duties test in determining exempt status?”
  • Should the salary level be automatically updated on a periodic basis?

Written comments are due on or before September 25, 2017.  

The RFI is another step by the DOL toward lowering the salary level the prior administration attempted to establish. However, the extent to which the new administration will lower the salary level required for exempt status and whether other aspects of the regulations will be modified remains to be seen. Honigman will continue to provide updates on the DOL’s actions relating to the overtime regulations, as well as the pending appeal.

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