A few weeks ago, the Department of Labor filed a brief with the Fifth Circuit Court of Appeals in which it backed away from the $913 per week salary level test set in the 2016 amendments to the FLSA overtime rules.  In that brief, the DOL stated that it would soon publish a request for information seeking public input to be used by the DOL in drafting a new proposed overtime rule.

On July 26, 2017, the DOL published the promised request for information, which contains eleven questions, including the following:

  • Whether updating the 2004 salary level for inflation is an appropriate basis for setting the standard salary level, and if so what measure of inflation should be used;
  • Whether the regulations should include more than one standard salary level, such as levels based on employer size, geographical region, or some other basis;
  • Whether the DOL should set different standard salary levels for the executive, administrative and professional exemptions;
  • Whether the salary level set in the 2016 overtime rule “eclipses” the role of the duties test in determining exempt status;
  • Whether employers increased salaries of exempt employees in anticipation of the 2016 overtime rule going into effect in order to retain the employees’ exempt status, and what effects such changes had on employers and employees;
  • Whether a duties-only test, without regard for salary level, would be preferable to the current scheme for determining exempt status;
  • Whether the salary level test set in the 2016 overtime rule excludes from exempt status occupations that were previously exempt; and
  • Questions about possible changes to the exemption for “highly compensated employees.”

The questions are noteworthy in that they suggest that the DOL is considering, or is at least open to, making significant changes to the overtime rule, which could include setting different salary level tests by region, occupation, or other criteria, or even eliminating the salary level test altogether.

Comments are due by September 25, 2017, and can be submitted at www.regulations.gov.

The DOL has stated that it does not intend to make any further changes to the overtime rule until after the appeal pending in the Fifth Circuit is resolved.  In the meantime, the injunction blocking the 2016 overtime rules remains in place, and the prior overtime rules are still in effect.