On July 25, 2017, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued a Request for Information (“RFI”) concerning the Obama-era overtime rule. The final overtime rule issued by the WHD during the Obama Administration (the “Final Rule”), which our Employment Practice Group summarized on May 20, 2016, increased the salary threshold for the white collar exemptions from overtime from $23,660 per year to $47,476 per year, but did not implement any changes to the applicable duties tests. The Final Rule never saw the light of day, as a Texas district court judge issued an injunction on November 22, 2016, which blocked the Final Rule from taking effect. We wrote about the injunction and its impact on employers here.
In keeping with the Trump Administration’s stated intention to revisit the Final Rule, the WHD published the RFI to obtain information from the public that would aid in formulating a new proposal to revise the overtime regulations. The RFI contains 11 questions for those who wish to submit comments, including, for example:
- Whether the 2004 salary level should be updated for inflation;
- Whether the regulations should contain multiple standard salary levels and, if so, how such levels should be set;
- Whether the duties tests should be revised; and
- Whether the WHD should implement a duties-only test.
This RFI presents an opportunity for interested parties to address the comments submitted during the public notice and comment period that took place during the Obama Administration concerning the white collar exemptions from overtime. Employers may be particularly concerned with the WHD’s request for comments on a duties-only test, which would eliminate the bright-line salary level test and, potentially, create more uncertainty for employers when deciding whether an employee is eligible for overtime pay.
The public comment period began on July 26, 2017, and remains open for sixty (60) days from that date. Therefore, employers and other interested parties have just under one month left – until September 25, 2017 – to submit comments regarding the overtime rule. Employers interested in submitting comments can do so on the Federal Register website.
Leech Tishman’s Employment Practice Group has extensive experience advising employers on exempt and nonexempt classification issues under the FLSA and guiding employers through U.S. Department of Labor Wage and Hour Division Audits.
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