Whatever Happened to Those New Overtime Regulations? DOL May Be Sending a Signal with Its Notice of AppealRemember last year when everyone was getting ready for the big change to the salary threshold for the overtime exemption that was set to go into effect on December 1? And then, seemingly out of nowhere, a judge put a stop to all of those worries? Ever wonder what happened to those pesky regulations? Although we still don’t know what is going to happen, it is worth a look back and a status update.

The Timeline

  • May 23, 2016: The DOL revised the FLSA overtime regulations to more than double the minimum salary a company must pay an employee for that employee to qualify as exempt from overtime status. The revised regulations were set to go into effect on December 1, 2016.
  • November 22, 2016: Judge Amos L. Mazzant, United States District Judge for the Eastern District of Texas, issued a nationwide injunction, enjoining implementation of the revisions.
  • August 31, 2017: Judge Mazzant ruled that the proposed revisions were invalid, finding that the department had exceeded its authority in making them.

The Latest

On October 30, 2017, the DOL Wage and Hour Division announced that the Department of Justice had filed a Notice of Appeal of Judge Mazzant’s ruling. According to the DOL’s statement, once the appeal is docketed, the Department of Justice will file a motion to hold the appeal in abeyance until after the DOL has undertaken “further rulemaking to determine what the salary level should be.”

This announcement indicates that the DOL is in the process of modifying the revisions — potentially rendering the appeal moot — however, it needs more time to do so. As noted in the October 30 statement, the DOL is currently reviewing the submissions to a Request for Information that went out in July 2017. Given the tenor of the current administration, I suspect any new revisions will be more business-friendly than the invalid 2016 revisions. Only time will tell.

WELCOME (?) BACK! DOL Reinstates Wage and Hour Opinion Letters – Should it Matter to You? The U.S. Department of Labor recently announced that it will revive its practice of publishing opinion letters to provide guidance to employers and employees on wage and hour issues. This change (after a seven-year hiatus) reopens the door for employers and employees to gain clarity on important issues affecting the workplace.

What’s an opinion letter?

An opinion letter is an official opinion written by the DOL Wage and Hour Division addressing a specific issue that affects employers and/or employees. An employer or employee can submit a request for an opinion letter on the DOL’s webpage. The DOL will review the request and may issue an opinion letter, if appropriate. (They get lots of them, so every request won’t be a taker!) The request should summarize the relevant facts and pose a question or issue for the DOL to address. The opinion letter is the DOL’s written response to that request, based on the information provided by the requester (who remains anonymous to the public) and any assumptions made by the DOL.

Why would you request an opinion letter?

There are many scenarios where an opinion letter might be helpful to an employer or employee. For example, if an employee switches from nonexempt status to a fluctuating workweek, an employee might seek guidance about whether the employee’s old bonus plan fits into his or her new compensation structure. Or an employer offering online classes to employees in preparation for a voluntary job training class may want to know whether that training time is compensable under the FLSA, as in this 2009 opinion letter.

If you’ve got a question about wage and hour laws and you can’t seem to find the answer in other guidance, requesting an opinion letter might be the right step. It may also be helpful to review past opinion letters. But remember, opinion letters are just guidance—they aren’t the law, and they aren’t binding.  When you’re navigating the intricacies of wage and hour issues, opinion letters can be a helpful tool.

overtime timesheetThe House of Representatives passed at least two notable measures last week.  You probably heard about the new healthcare legislation, but you may not have heard about the Working Families Flexibility Act (WFFA). Though Republican representatives were not invited to a celebration in the Rose Garden following its passage, employers need to keep an eye on the WFFA. If enacted, the WFFA would allow employers to offer employees who work overtime the choice of paid time off or time-and-a-half pay as compensation. The act would require employers to continue offering traditional overtime pay; a PTO option would simply become a legal alternative that the employee could choose.

Quick FLSA Refresher

Last year at this time, we were preparing for significant changes to the salary threshold requirement for the Fair Labor Standards Act’s (FLSA) white collar exemptions. While a Texas district court ultimately struck down those changes at the end of 2016, one benefit to that process was that many employers brushed up on the FLSA’s overtime requirements. In case you did not, though, here is a quick refresher on the basics:

  • The FLSA generally requires covered employers to pay nonexempt employees minimum wage (currently $7.25 per hour) and time-and-a-half compensation for hours worked over 40 in a workweek.
  • Covered employers (almost everybody) are employers engaged in interstate commerce or whose annual gross volume of sales or business is $500,000 or more.
  • There are a number of exemptions, and you should look closely at an employee’s duties and compensation to ensure that he or she meets all of the requirements to fall into that exemption. An employee is not exempt simply because he or she is salaried.

WFFA Chances of Passing

The WFFA serves as a reminder that offering additional PTO, sometimes called “comp time,” is not currently a lawful form of overtime compensation for private employers. The requirement for time and a half for hours over 40 in a workweek will stand unless the Senate also passes the WFFA, and that may be a longshot. All 52 Republican Senators as well as eight Democrats must vote for the act to avoid a filibuster. The act did not have unanimous Republican support in the House, and it is unlikely to garner unanimous support in the Senate. Republican Congressmen have introduced similar measures on several occasions over the years, most recently in 2013, but none has passed both chambers to change the overtime pay requirements. We will keep you posted.