In Focus: DOL Will Submit Request for Information on Overtime Rule

By Allen Smith, J.D. Jun 8, 2017
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​Labor Secretary Alexander Acosta announced at a House of Representatives Committee on Appropriations hearing June 7 that the Department of Labor (DOL) will submit a request for information on the overtime rule in two to three weeks. A request for information (RFI) is one among many possible tools used by an agency to help it develop a proposed rule and its use is optional, the DOL notes. "Agencies generally use RFIs when they want public input on whether a new rule or changes to an existing rule are needed and comments on what course the agency should take should it decide to move forward," according to the department in its glossary of rulemaking terms.

Acosta Says Overtime Rule Should Reflect Inflation

At a confirmation hearing in March, Acosta said the salary threshold for overtime exemption should be raised from $23,660 to "somewhere around $33,000" after figuring for inflation to the cost of living since 2004—the last time the regulation was successfully adjusted. A regulation from last year would have doubled the Fair Labor Standards salary threshold to $47,476 but was blocked by a court order. Acosta said that once confirmed, he would decide whether the department would continue to appeal the November 2016 federal court decision that halted the Obama-era rule on overtime pay. (SHRM Online)

[SHRM members-only HR Q&A: What types of compensation can an employer include in an exempt employee's salary to meet the FLSA minimum salary requirement?]

Overtime Reply Brief Delayed Until June 30

The last action in the litigation over the overtime federal court decision was the DOL's request for more time to file a brief, a request that was granted and a deadline set of June 30. The delay was requested on April 14, before Acosta had been confirmed to serve as Labor secretary. "The DOL is obviously keeping its options open as it awaits the confirmation of a new secretary of Labor, who may also prefer to await the appointments of a solicitor of labor and wage and hour administrator," said Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich. (SHRM Online)

AFL-CIO Seeks to Intervene

In another wrinkle in the litigation, the Texas AFL-CIO moved on Dec. 9, 2016, to intervene in the case—a motion that, if granted, could keep the litigation alive even if the Trump administration withdraws the DOL's appeal. (SHRM Online)

Obama's Overtime Rule Halted

A federal district court judge halted implementation of the Obama administration's overtime rule Nov. 22, 2016—just 10 days before its implementation date. Twenty-one states had filed an emergency motion for a preliminary injunction to halt the rule. They claimed that the DOL exceeded its authority by raising the salary threshold too high and by providing for automatic adjustments to the threshold every three years. The district court suggested that no salary threshold would be valid, a finding that some have speculated the DOL might want to challenge under Acosta's leadership. (SHRM Online)

 

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