In a notice published in the August 28, 2018, Federal Register, the Department of Labor announced it will conduct public listening sessions to gather views on white collar exemption regulations under the FLSA. The FLSA exempts from both minimum wage and overtime protection “any employee employed in a bona fide executive, administrative, or professional capacity” and delegates to the Secretary of Labor the power to define and delimit these terms through regulation.
On July 26, 2017, the DOL published a Request for Information (RFI), Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (See 82 FR 34616). The RFI was one opportunity for the public to provide information to help the agency formulate a proposal to revise the white collar exemption regulations. In its notice, the DOL notes that these listening sessions are another opportunity, which will take place:
September 7, 2018 Atlanta, Georgia 10am-12pm
September 11, 2018 Seattle, Washington 10am-12pm
September 13, 2018 Kansas City, Missouri 10am-12pm
September 14, 2018 Denver, Colorado 10am-12pm
September 24, 2018 Providence, Rhode Island 10am-12pm
The Labor Department advises that members of the public may attend these listening sessions in person up to the seating capacity of the room. The Department will not attempt to achieve a consensus view in these listening sessions, but rather is interested in hearing the views and ideas of participants. To obtain specific location details and register to attend, please visit this link: https://www.eventbrite.com/e/overtime-rule-outreach-sessions-tickets-49216139799.
Salary level test. According to the DOL, these sessions will provide further opportunity for the public to provide input on issues related to the salary level test, such as:
What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply? Why?
What benefits and costs to employees and employers might accompany an increased salary level? How would an increased salary level affect real wages (e.g., increasing overtime pay for employees whose current salaries are below a new level but above the current threshold)? Could an increased salary level reduce litigation costs by reducing the number of employees whose exemption status is unclear? Could this additional certainty produce other benefits for employees and employers?
What is the best methodology to determine an updated salary level? Should the update derive from wage growth, cost-of-living increases, actual wages paid to employees, or some other measure?
Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees? If so, how should these updates be made? How frequently should updates occur? What benefits, if any, could result from more frequent updates?