The U.S. Department of Labor (DOL) published a request for information (RFI) on July 26, 2017, regarding the overtime rule for determining whether employees are exempt or non-exempt under the Fair Labor Standards Act (FLSA). The purpose of the RFI is to ask the public for information that will help DOL in formulating a proposal to revise the FLSA regulations.
Under the Obama administration, the minimum salary threshold for treating an employee as exempt from overtime under the so called FLSA white collar exemptions was increased from $455 per week ($23,660 annualized) to $913 ($47,475 annualized), effective December 1, 2016. The increase in the threshold was highly controversial and within two weeks of the effective date, a federal district court in Texas issued a nationwide preliminary injunction, effectively putting the increase on hold. Since then, an appeals court granted the DOL three extensions in defending their case as a new Secretary of Labor had not been confirmed following Trump becoming President. Alex Acosta, the new Secretary of Labor, was ultimately confirmed on April 27. Of note is that during the confirmation hearing, Acosta indicated that DOL will review and possibly revise the FLSA regulations and stated that he believed the minimum salary threshold should be around $33,000.
The RFI asks for feedback on questions pertaining to the minimum salary threshold as well as to the duties test, verifying cost-of-living in different parts of the U.S., inclusion of non-discretionary bonuses and incentive payments for satisfying part of the minimum salary threshold, the salary test for highly compensated employees, and automatic updating of the minimum salary threshold. All comments must be received by September 25, 2017. Comments may be submitted electronically at http://www.regulations.gov, or mailed to Melissa Smith, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington DC 20210. The DOL prefers to receive comments electronically. To date, there are over 35,000 who have submitted comments. To view the RFI, visit the Federal Register website at
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