Posted on 08/04/2017 at 06:18 AM by Mike Staebell
As its initial step to replacing the Fair Labor Standards Act “White Collar” exemptions Final Rule, the U. S. Department of Labor has issued a Request for Information (RFI) seeking public comment. According to the DOL, “The RFI is an opportunity for the public to provide information that will aid the Department in formulating a proposal to revise these regulations.” The RIN raises 11 broad-ranging issues, each containing several questions for public input. Comments on the July 26 RFI are due by September 25, 2017.
The Final Rule was to have taken effect December 1, 2016, and would have more than doubled the minimum salary required to qualify under most of the FLSA’s white collar exemptions, (aka EAP: Executive, Administrative, Professional, Highly Compensated). The Final Rule is currently subject to a nationwide injunction imposed by a Texas Federal District Court, which is on appeal at the Fifth Circuit Court of Appeals. I have previously blogged on the history and status of the White Collar Final Rule, and you can read it here.
It is no surprise that the Trump administration is not pursuing the salary level of $913 per week that was part of the 2016 Final Rule, and the RFI seeks public comment on what the minimum salary requirement should be. In addition, the DOL says it is evaluating the Final Rule with a focus on lowering regulatory burdens, and solicits input in the following general questions:
- Whether the salary levels in the enjoined 2016 rule “effectively identify employees who may be exempt”
- Whether a different salary level (presumably lower) would be preferable, and why
- The basis and methodology that should be used to determine a different salary level
The RIF also poses these specific questions for comment:
- Should the new rule include provisions for automatic increases (indexing)?
- Should geographic regions should have differing salary levels?
- Should non-discretionary bonuses and incentive payments be included in the minimum salary levels?
- Whether different white collar exemptions should have different salary levels
- Whether there should be multiple total compensation levels set for the exemption for highly compensated employees (perhaps by geography)
- Should the highly compensated exemption should be subject to indexing?
- The impact of the 2016 Final Rule on employers who made changes before it was enjoined.
Going well beyond the enjoined 2016 Rule’s changes to the salary test, the RFI also seeks comment on the White Collar duties tests, including whether the duties tests should be changed as well as the salary tests; at what point does the salary level eclipse the role of the duties test; whether only a duties test should be used (eliminating a salary test); and whether the DOL should return to the long and short tests that were used prior to the last change to the White Collar regulations in 2004.
I encourage you to consider making a comment. From my experience at DOL, I know that every comment is read, and many are considered when engaging in rulemaking. At least one Iowa employer’s comment was included in the explanation of the Final Rule when it was published in the Federal Register last year. You have until September 25, 2017 to submit comments, and the process is easy: you may do so electronically here. Written submissions may be sent 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, DC 20210.
The Trump DOL reportedly does not plan to begin new rulemaking until it obtains a court ruling confirming that it has authority to establish a salary test. So a revised Rule won’t likely be announced until 2018.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
- Mike Staebell