On June 11, 2019, members of the House and Senate introduced companion bills to amend the Fair Labor Standards Act (FLSA). The bill, called Restoring Overtime Pay Act of 2019, would raise the minimum salary threshold for exempt executive, administrative and professional (EAP) employees to north of $50,000 and automatically update the threshold every three years.

The Restoring Overtime Pay Act of 2019 would legislate the minimum salary for exemption under the EAP exemptions for the first time in U.S. history. 

This law would fix the salary threshold at a level equal to the 40th percentile of earnings of full-time salaried workers in the lowest-wage census region. 

Read more about the bill here.

If you’re expecting regulation updates on overtime exemptions, you’ll have to wait until next year. The U.S. Department of Labor (DOL) pushed the date to propose new regulations governing overtime exemptions from the Fair Labor Standards Act (FLSA) to March 2019.

The DOL plans to roll out an updated salary level for exemption and seek the public’s view on salary-related issues. Today’s salary threshold for overtime pay is $23,660, but President Trump’s DOL may propose a range between $32,000 and $35,000.

When the rules are changing, employers need to prepare their businesses and HR departments for compliance with important FLSA resources. You can also read here to learn more about DOL’s fall regulatory agenda.

On August 28, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued four new opinion letters, each interpreting a different aspect of the Fair Labor Standards Act (FLSA). The WHD resumed issuing opinion letters, which serve as official written interpretations about how the FLSA applies in specific situations, in mid-2017. This time around, the opinion letters covered topics such as employer-sponsored wellness events, whether the movie theater overtime exemption applies to in-theater-restaurant workers, and whether employees serving as volunteer graders for non-profit professional credentialing organizations are entitled to overtime pay for time spent on that task. For brief summaries of each of the letters, refer to this National Law Review article.

The Trump administration released its Spring Regulatory Agenda, outlining the actions federal agencies intend to prioritize in 2018. Proposals include removing burdens on infrastructure, emerging technology, and small businesses in hopes to promote economic growth and innovation. The agenda (which includes 3,352 overall rules in play) represents ongoing progress towards more transparency, public notice, and due process in rule making.

Some points of entries include:

• DOL (Department of Labor) stated that it will revise the definition of “regular rate,” the number that shapes the foundation for overtime calculations, this coming September. Changes in bonuses and incentives mandated by the FLSA (Fair Labor Standards Act) would tilt in favor to employers as it would reduce their overtime liability significantly.

• Another proposal in the agenda is to expand apprenticeship and job opportunities to minors under eighteen. It aims to ease rules that prohibit minors from working in “hazardous” occupations or around machinery that is barred.

• The agenda also puts forward relief for small businesses such as creating flexibilities designed to lower costs and allow more business owners to obtain insurance and expanding commercial fishing after fishing seasons close.

• The proposed rule to overturn the controversial “persuader rule” expands the reporting obligations of “consultants” who conduct activities to convince employees about their rights to join a union or bargain collectively. It requires reporting even when the consultant communicated only to the employer and has no direct contact with employees.

The agenda aims to reflect progress toward reducing regulatory burdens. In accordance with President Trump’s Executive Order 13771, the plan seeks to eliminate two regulatory actions for each new regulation—all managed within a controlled budgeting process to reduce government costs. As regulatory actions are in development, it’s important to note the public can create meaningful comments on policies that affect them.

How do you determine “normal” work hours for educators with irregular schedules? If someone has a serious health condition, how are rest breaks compensated? Are lump-sum payments considering “earnings”? Finally, what is the applicability of “white collar” exemptions in higher education institutions?

All these questions are answered in the Department of Labor’s (DOL) new fact sheet for higher education employees concerning overtime pay under the FLSA. The fact sheet addresses the “white collar” exemptions for employees who perform executive, administrative, professional, and outside sales duties. This includes teacher exemption, professional employee exemption, administrative employee exemption, academic administration employee exemption, and executive employee exemption. In particular, it highlights positions unique to higher education that may fall into various exemptions, including coaches, online educators, postdoctoral fellows, academic counselors, and department heads.

Additionally, the fact sheet provides opinion letters, frequently-asked-question responses, and general DOL details. Rolling out the fact sheet will provide employers with assistance and guidance for complying with the FLSA.