Professional Service Agreement

DOLs Revision to Overtime Law Expected Fall 2022

June 29, 2022

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.

Once anticipated in the spring, the proposed rule will recommend how to implement the exemption of bona fide executive, administrative and professional employees from the Fair Labor Standards Act's (FLSA's) minimum wage and overtime requirements.

High on the DOL's list of priorities with the proposed overtime rule will be adjusting the salary level, possibly increasing it from its current annualized rate of $35,568. Sources that there is pressure to bring the amount to as high as the $47,476 annualized amount that was enjoined by a court in 2016. Other advocates are seeking even higher levels, from $62,000 to over $80,000 per year.

Another item on the list of DOL priorities may be the creation of an automatic annual or periodic increase to the salary level by indexing it to the consumer price index or another economic indicator so that the amount will increase without the DOL having to undertake formal rulemaking. DOL may also consider revising the duties tests under the White-Collar Exemptions from overtime.

These types of changes could also disqualify many currently exempt employees from their current exempt status which would require employers to make adjustments to compensation practices.

While employers should be monitoring these potential changes, the regulatory process is still in the early stages. SESCO will continue to monitor all federal and state regulatory changes and notify clients accordingly.

Other DOL Action

The DOL noted in its agenda that the Occupational Safety and Health Administration (OSHA) has already issued an emergency temporary standard to address the danger of COVID-19 in health care workplaces. The department said in the regulatory agenda that "the danger faced by health care workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them." OSHA aims to complete a final rule by September.

A Davis-Bacon Act final rule is now scheduled for December.

A final rule on improving tracking of workplace injuries and illnesses is slated for December, as well.

Notably absent from the spring regulatory agenda is an entry for an FLSA independent-contractor rulemaking, given that a recent blog post on the DOL's website stated that such a proposal is in the works.

NLRB Agenda

The National Labor Relations Board (NLRB) indicated in the spring regulatory agenda its intention to consider addressing the following topics using the rulemaking process in the future:

- Joint-employer status under the National Labor Relations Act.
- Procedures governing "blocking charges."
- Procedures on voluntary recognition of unions.

The board announced it would be revising the union representation election procedures with a focus on the amendments issued in 2020.