7/26/17 – In the latest saga regarding the controversial overtime rule promulgated under the Obama administration, the Department of Labor (DOL) published a request for information (RFI) relating to white collar exemptions.
White collar exemptions provide exceptions to the Fair Labor Standards Act (FLSA)’s minimum wage and overtime requirements for certain executive, administrative, professional, outside sales, and computer employees. In the litigation regarding the 2016 Final Rule of the Obama-era regulations currently pending in the Fifth Circuit Court of Appeals, the DOL has indicated that it will no longer advocate for the specific salary level ($913/week) set forth in the 2016 Final Rule. This RFI seeks to obtain information from the public about what the salary level should be. Additionally, the RFI seeks information from members of the public regarding what the parameters of the white collar exemptions.
The information gathered through the RFI will be taken into consideration by the DOL and will be utilized in the formulation of a revision to white collar exemptions. In particular, the RFI is seeking feedback regarding many critical issues that could help clarify, define, and possibly expand white collar exemptions. Among the issues upon which information is sought are:
- Salary-Basis Test and Salary-Level Test
- Duties Test
- Issues relating to cost-of-living in various locations
- Impact of different forms of compensation (e.g. bonuses, incentives) on the Salary-Level Test
- Salary-Level Test for Highly Compensated Employees
- Automatic updating of Salary-Level Tests
The RFI was issued, in part, to comply with the Trump administration’s Executive Order 13777 “Enforcing the Regulatory Reform Agenda.” The Executive Order directs federal agencies to identify regulations for repeal, replacement, or modification that, among other things: (i) eliminate jobs, or inhibit job creation; (ii) are outdated, unnecessary, or ineffective; (iii) impose costs that exceed benefits; (iv) create a serious inconsistency or otherwise interfere with regulatory initiatives and policies.
The complete RFI and the specific questions that the Department of Labor is seeking responses to can be found at: Request for Information; Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.
The 60-day comment period for issues raised in the RFI ends on September 25, 2017. Comments may be submitted by mail to: Melissa Smith, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington D.C. 20210. Electronic comments may be submitted electronically at http://www.regulations.gov.
For more information or assistance in submitting a comment or response to the RFI, contact the Hinckley Allen Labor & Employment attorney with whom you regularly work, or one of our Labor & Employment attorneys. Follow Hinckley Allen on Twitter and LinkedIn for the latest news and updates.