Last fall when the Department of Labor, under the Obama administration, changed the salary levels by which an employee was determined to be exempt or nonexempt. There was a great outcry. You bitched, you moaned and cried. You said it was too much. You said it would be a burden to go through the effort. Then a couple of days before the change went into effect two lawsuits caused a judge to put an injunction on the change. Then we changed administrations from Obama to Trump and the new DOL decided not to pursue the issue, as I talked about in The Department of Labor stepping back from some Obama era regulations and The “New” DOL working toward being balanced toward employees and employers.
A request for information
I mentioned that, as part of the reform effort, the USDOL would be looking for input from companies and the public on how they should approach the subject of how an it should be determined if an employee is exempt of nonexempt. This RFI was published in the Federal Register. You can find it here. They are asking a variety of questions, some of which are:
- Would updating the 2004 salary level for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used?
- Alternatively, would applying the 2004 methodology to current salary data (South and retail industry) be an appropriate basis for setting the salary level?
- Should the regulations contain multiple standard salary levels?
- Should the Department set different standard salary levels for the executive, administrative and professional exemptions as it did prior to 2004 and, if so, should there be a lower salary for executive and administrative employees as was done from 1963 until the 2004 rulemaking?
- Does the standard salary level set in the 2016 Final Rule work effectively with the standard duties test or, instead, does it in effect eclipse the role of the duties test in determining exemption status?
- Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test?
- Does the salary level set in the 2016 Final Rule exclude from exemption particular occupations that have traditionally been covered by the exemption and, if so, what are those occupations?
These are just some of the questions asked by this RFI. If you wish to comment you need to read the short entry that has a complete listing of all the questions they are asking. You can follow the links I provided above.
Need your input
Attorney Robin Shea reminds us that things are still up in the air with the injunction and the Trump DOL does not plan on any rulemaking until there is more clarity. But in the meantime the DOL is looking for your input on the rules should go. SO HERE IS YOUR CHANCE TO IMPACT THE RULES YOU WILL HAVE TO LIVE WITH IN THE FUTURE! You can submit comments by following these instructions:
To facilitate the receipt and processing of written comments on this RFI, the Department encourages interested persons to submit their comments electronically. You may submit comments, identified by Regulatory Information Number (RIN) 1235–AA20, by either of the following methods:
Electronic Comments: Follow the instructions for submitting comments on the Federal eRulemaking Portal http://www.regulations.gov.
Mail: Address written submissions 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.