DOL Request for Information Sheds Light on Possible Changes to Overtime Rule

Employment Law

The Department of Labor published an extensive set of questions asking how the agency should revise the Obama-era overtime rule, suggesting a willingness to consider fundamental changes to how exemptions are determined.  The request for information (RFI) included 11 sets of questions that cover a wide range of policy and technical issues, among them:

• Should there be different salary level tests for the three white-collar exemptions (executive, professional, and administrative) and/or different salary levels by employer size, location, and industry;
• Would a duties-only test without regard to an employee's salary level be preferable to the current test; and
• Should there be multiple total annual compensation levels for the highly compensated employee exemption?

Importantly, unlike a notice of proposed rulemaking, the RFI does not start the formal process of updating the rule or describe a proposed replacement.  In November 2015, a federal judge in Texas blocked the Obama administration's final overtime rule from taking effect.  That decision is now on appeal in the Fifth Circuit.  In June, DOL told the appeals court that it will not issue a new proposed rule until after the court affirms the agency has the authority to use an employee's salary as a basis for determining overtime eligibility.  The public has 60 days to respond to the RFI.  HR Policy intends to submit a comprehensive response.