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DOL request indicates second attempt at the final overtime rule
By Katherine Fechte on August 8, 2017 at 2:15 PM

Blue binder with the word "overtime" on the side, on top of a deskThe U.S. Department of Labor (DOL) published a request for information (RFI) in late July seeking comments, data, ideas and information on an appropriate salary level for exempt employees under the Fair Labor Standards Act (FLSA).

A Texas federal district judge issued an order last November to stop the DOL’s new overtime rule from taking effect on Dec. 1, 2016, and questioned whether the DOL had the authority to raise the minimum salary level. The DOL appealed the order to the Fifth Circuit Court of Appeals, and in its June 30 reply brief, the department argued that while it does have authority to set a minimum salary threshold for the exemptions, it has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time. The DOL further said it intends to undertake additional rulemaking to determine what the salary level should be.

The DOL’s RFI, published in the Federal Register on July 26, 2017, requests responses to 11 sets of comprehensive questions including:

  • Would updating the 2004 salary level ($455 per week) for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used?
  • Should the regulations contain multiple standard salary levels? If so, how should these levels be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method?
  • To what extent did employers, in anticipation of the 2016 Final Rule’s effective date on Dec. 1, 2016, increase salaries of exempt employees in order to retain their exempt status, decrease newly non-exempt employees’ hours or change their implicit hourly rates so that the total amount paid would remain the same, convert worker pay from salaries to hourly wages, or make changes to workplace policies either to limit employee flexibility to work after normal work hours or to track work performed during those times?
  • Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test?

The DOL allowed for a comment period of 60 days from the date of publication in the Federal Register, so the comment period ends Sept. 25, 2017. By issuing the RFI, the DOL has indicated it wants to rework the exemption tests and seeks input from businesses, employees and interested associations and groups on what those tests should be.

The RFI also provides an excellent opportunity for employers and other interested parties to be heard. Those who want to read more about the RFI or submit information in response to it can do so here. If you have any questions about the RFI and what this could mean for implementation of the final overtime rule, please contact one of the attorneys in our Employment & Labor Group.

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