DOL Game Changer

Posted on May 4, 2018 in Uncategorized

The stability and predictability of 78 years of wage and hour law has been in flux over the past year, and things got really interesting just last week. On Wednesday, July 26, 2017, the Department of Labor issued a Request for Information (“RFI”) that suggests the government might – I stress might – rework the fundamentals of wage and hour law. The RFI seeks comments on the regulations related to exemptions for executive, administrative, professional, outside sales, and computer employees and can be found at:

https://www.federalregister.gov/documents/2017/07/26/2017-15666/request-for-information-defining-and-delimiting-the-exemptions-for-executive-administrative

One question in the RFI struck me as particularly interesting and potentially game changing:

Question 7: Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test? If so, what elements would be necessary in a duties-only test and would examination of the amount of non-exempt work performed be required?

This question suggests that the DOL is seriously considering the abolishment of the salary-basis test in favor of classifying employees as exempt from overtime based solely on the type of work they perform. The history-geek in me finds this fascinating because a minimum “salary” for white-collar professionals has been required since 1938 without substantial challenge.

In fact, only recently did the DOL create an uproar when it sought to increase the salary threshold from $455/week to $913/week effective December 1, 2016. On the eve of that effective date, however, a federal judge enjoined the enforcement of the increased salary threshold. The DOL quickly appealed. Interestingly, the DOL acknowledged in its brief that it no longer seeks to enforce the salary threshold increase and insisted that the salary-basis test is valid. If you are unfamiliar with this litigation, please check out:

https://www.nytimes.com/2016/11/22/business/obama-rule-to-expand-overtime-eligibility-is-suspended-by-judge.html.

Yet now – because the story needs another twist – the DOL has issued an RFI that questions whether a salary-basis test even makes sense. What does this all mean? In short, the DOL is reconsidering fundamentals of overtime exemption regulations.

And the DOL is correct to rethink this issue. Whether someone earns money on an hourly, daily, or weekly basis has no economic significance. Instead, an exemption from overtime should be based on a minimum annual income test adjusted periodically based on a formula driven by published data from the Congressional Budget Office. Thus, the DOL should abolish the salary-basis test in favor of something more akin to a requirement that the FLSA exemption be governed by a minimum guaranteed annual compensation. I leave it to economists to set that figure, but I am pleased to see the government rethink the issue.