2023 Locke Lord LLP | Attorney Advertising, Employee Benefits & Executive Compensation, Environmental, Social and Governance (ESG). Conversely, there is nothing stopping the DOL from issuing new rules before its target dates, either. | 2 p.m. After a new overtime rule is proposed, the public will have at least 30 days to comment on it before the DOL can issue a final rule. Many in the business community believe that current hiring and retention issues, supply chain disruptions, and inflationary pressures are all reasons why the DOL should not proceed with a rulemaking.". The most common exemption categories are known as the white collar exemptions: executive, administrative and professional. Please confirm that you want to proceed with deleting bookmark. Tuesday, February 28, 2023. 10.19.2022 The Department of Labor is seeking public comment on or before November 28, 2022, regarding its proposed changes to the classification of independent contractors under the Fair Labor Standards Act. var temp_style = document.createElement('style'); The two areas of anticipated revision are to the salary level and duties tests for an employee to be exempt from overtime pay. EEOC Seeks Comments on Strategic Enforcement Plan The Equal Employment Opportunity Commission (EEOC) has published for public comment, a draft Strategic Enforcement Plan. Before publication of todays proposed rulemaking, the departments Wage and Hour Division considered feedback shared by stakeholders in forums during the summer of 2022 and will now solicit comments on the proposed rule from interested parties. @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} p.usa-alert__text {margin-bottom:0!important;} Need help with a specific HR issue like coronavirus or FLSA? On June 21, the U.S. Department of Labor (DOL) announced that its proposed overtime rule is now tentatively slated to be released in October. Although the DOL will almost certainly grant employers several months of lead-up time before implementing the new threshold, understanding the potential impact of a dramatic increase now will help employers adjust in the future. When finalized, the plan will set forth the EEOCs enforcement priorities. Require automatic future increases to the threshold. In December 2022, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders. Biden's DOL may seek to increase the threshold even greater than the 2016 proposal under Obama. Under the FLSA, employees must receive overtime pay of at least one and one-half times their regular rate of pay for work in excess of forty hours per workweek. p.usa-alert__text {margin-bottom:0!important;} Get the free daily newsletter read by industry experts. Salaried exempt employees have to earn at least the state thresholds because they are higher than the federal . For example, the lack of transparency in knowing what to expect makes it more difficult to hold the administrative state accountable for its plans. In 2016, a proposed change would have moved the salary threshold from $455 per week ($23,660 annualized) to $913 per week ($47,476). DOL had previously planned to release the proposed rule in October 2022. The DOL's proposed overtime rule would raise the minimum weekly pay threshold legally required to exempt salaried workers from overtime pay from $455 per week to the 40th percentile of earnings for full-time salaried workers. While employers should be monitoring these potential changes, the regulatory process is still in the early stages, said Jim Plunkett, an attorney with Ogletree Deakins in Washington, D.C. "At this time, stakeholders do not even know what changes the DOL will propose, much less finalize," he said. Ultimately, Judge Amos Mazzant in the United States District Court for the Eastern District of Texas enjoined the new threshold from going into effect after determining the salary increase of more than 100% contravened Congresss intent by supplanting the job duties test and creating a de facto salary-only test. At the time, the DOL estimated that the $921/week threshold would make more than 4.2 million workers ineligible for a white-collar exemption and eligible for overtime pay. Copyright 2023 LexisNexis Risk Solutions Group. Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. Specifically, the flexibility guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. . var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Separately, the National Labor Relations Board said it plans to propose in February 2022 an update to rules that govern when two or more employers are jointly liable . Many of these pending and future rulemakings outlined above are expected to face scrutiny via congressional oversight in the newly Republican-controlled House of Representatives. The following roles are exempt from overtime: The salary test is where we expect to see changes. The district court did this partly based on its conclusion that the June 2012 memorandum announced a legislative rule that required notice-and-comment rulemaking. Topics covered: National employment laws, harassment, accommodations, training, and more. 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But they delayed it and are now targeting October 2022 as the release date. $('.container-footer').first().hide(); While it is unclear whether the December NPRM will include the blacklisting language again, the abstract of the re-proposal states that the new proposed rule would be responsive to the comments received on our February 2022 proposal.. You may be trying to access this site from a secured browser on the server. The DOL review and anticipated announcement represent a quick turnaround, given the previous update to overtime rules implemented in 2019 delivered the first substantive changes enacted since 2004. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Misclassification is a serious issue that . The Biden Administration's fall 2021 regulatory agenda projects that the Department of Labor (DOL) will revisit before April 2022 the salary level at which an employee could be exempted from federal overtime and minimum wage requirements, as well as address other aspects of the overtime regulatory regime. }. June 29, 2022. Lee Schreter, an attorney with Littler in Atlanta, said she wouldn't be surprised if the DOL tightens up the administrative exemption. Among the subject matter priorities included in the draft plan are: IRS Increases Mileage Rates by Three Cents The Internal Revenue Service (IRS) advised that the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes increased by three cents to 65.5 cents per mile effective on January 1, 2023. "Some commentators, though, believe that the administration may go the distance this time and look toward conforming the federal rules to more closely reflect the California standards," he said. FTC Proposed Rule Would Ban Noncompete Agreements The Federal Trade Commission (FTC) has proposed a rule that would ban employers from imposing noncompete agreements on their employees. The NPRM proposes a framework more consistent with longstanding judicial precedent on which employers have relied to classify workers as employees or independent contractors under the FLSA. The agenda says they will have proposed rule revisions and . From March 2020 through June 2020, employees were required to work remotely four days per week due to the COVID-19 pandemic. Sign up for our newsletter and get the latest to your inbox. 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