June 4, 2014

Some Surprises in DOL’s Just Issued Spring 2014 Regulatory Agenda

From: Ogletreet Deakins

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Wage and Hour Division

Within the DOL’s rule list of 91 items, the Wage and Hour Division (WHD) has five regulatory items. Two of the items are long-term actions for which the WHD did not specify a projected date of when it may issue a proposed rule.  These items are the “Right to Know” rule under the Fair Labor Standards Act (FLSA) initiative and the Fair Labor Standards Act, Child Labor Hazardous Occupations Order, No. 7. As for the active items that WHD is pursuing, these include proposals on the Family and Medical Leave Act of 1993, as amended, establishing a minimum wage for contractors, Executive Order 13658, and defining and delimiting the exemptions for executive, administrative, professional, outside sales and computer employees.

For the first time since President Obama issued a memorandum in March 2014 instructing the DOL to revise its rules to “define and delimit” the FLSA overtime exemptions for “white collar” executive, administrative, professional, outside sales, and computer employees under the Part 541 regulations, the DOL has disclosed its plans to promulgate revisions by November 2014. This probably can be construed as meaning that the WHD will wait until after the November 2014, elections to publish a proposed rule for notice and comment.  At a minimum, it can be said that the DOL is heeding the president’s March 2014 memorandum. The proposed rule is intended to streamline the “white-collar” overtime exemption by increasing the salary level and revising specific job duties required to qualify for exemption. Of course, the notice of proposed rulemaking (NPRM) is merely the start of the rulemaking process, which will also include a period of public comment, agency review, and OMB review prior to final action.

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