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On June 27, the Department of Labor (DOL), as indicated recently by Secretary Alex Acosta (pictured), sent a new Request for Information (RFI) to the Office of Information and Regulatory Affairs (OIRA) related to the overtime rule. The RFI will be used by DOL to solicit information from the public to help to determine whether a new rule or changes to an existing rule are warranted.
Although the text of the RFI has not yet been published, it will likely solicit input on how DOL should set an appropriate salary level used to determine whether an employee is exempt or nonexempt under the Fair Labor Standards Act's (FLSA's) overtime provisions. The RFI may also seek input on other aspects of overtime, including whether the salary level should be updated automatically.
The overtime rulemaking finalized during the Obama administration increased the salary level from the current $23,660 per year to $47,476 per year and called for automatic adjustments to the salary level every three years. Although the rule was scheduled to go into effect December 1, 2016, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction to block it, suggesting that DOL focused too much on salary when updating the rule. As we go to print, it is anticipated that DOL's reply brief in this litigation, which is due to be filed June 30, will not defend the Obama administration rule. Rather, it is expected to ask the court to uphold the agency's ability to use a salary threshold to determine whether an employee is exempt from overtime.
Once the text of the RFI is available, SHRM will review it and solicit input from members in formulating SHRM's comment to DOL. Bookmark www.advocacy.shrm.org/overtime where we will post the latest developments.
While SHRM has stated publicly that an increase in the overtime salary threshold is long overdue, we have long advocated for a more reasonable salary level increase based on the methodology used previously by DOL and for the removal of the automatic salary adjustment provision contained in the Obama-era rule.
SHRM is also working with the Small Business Administration's (SBA's) Office of Advocacy, as we did during the previous rulemaking process on the overtime issue, to ensure SHRM member participation in SBA regional listening sessions on the topic. SHRM held its first SBA Office of Advocacy listening session on overtime during the 2017 Annual Conference & Exposition in New Orleans. In addition to holding regional meetings to gather views on the impact of the overtime regulation on small business, the Office of Advocacy has established an online form for small businesses that may not be able to attend, but have regulatory issues they'd like to share with the agency: https://www.sba.gov/advocacy/regulatory-reform-input.
Stay tuned for additional information as DOL's focus on overtime becomes more clear.
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