The Overtime Rule – Again!

July 26, 2017

The Trump administration’s Department of Labor did not continue the appeal of the injunction which had blocked the implementation of the Overtime Rule last December (to find the history, use the search feature in the lower right corner of the at to search for the word “overtime” in the News Posts).  That meant that the injunction prohibiting implementation has remained in place. The Department of Labor has now issued a “Request for Information” (RFI) and VNPP will contribute to the response being developed by our national partners at ANCOR. RFI comments are due on September 25, 2017. Some specific areas that the DOL has asked for input on are:
  • Inflation rate ­–Whether updating the 2004 salary level for inflation would be appropriate and if so what measure of inflation to use? If the threshold is raised using an inflator, should there be changes made to the duties test?
  • Multiple salary levels based on employer size/location –Whether the regulation should have different salary levels based on employer size, census region or division, state, metropolitan area, or some other method? This would be similar to the federal government’s use of general schedule locality areas that adjust for different costs-of-living based on geographic location.
  • Multiple salary levels based on employee type– Prior to 2004, there were different salary levels for the different types of exempt employees. Should DOL return to having a lower threshold for executive and administrative employees than for professional employees?
  • Long/short duties test – In 2004, the DOL abandoned having two duties test, a long test paired with a lower salary and a short test paired with a higher salary. The RFI asks whether the rule should return to this methodology.
  • Relationship between salary and duties– The RFI asks whether the salary level set in 2016 is so high that it makes the duties test irrelevant.
  • Employer action based on 2016 rule – The RFI asks for employers to comment on whether they increased salaries, decreased hours, or made other changes in anticipation of the rule, and whether changes made were rescinded when the rule was injuncted.
  • Duties only criteria – Would employers prefer an exemption test that relies on duties only, without a salary threshold?