Regulatory Spring: Rulemaking by the Wage & Hour Division - May 23, 2019

Earlier this week, the comment period ended for the U.S. Department of Labor, Wage & Hour Division’s proposed rule increasing the salary threshold for the FLSA’s white collar exemption. The proposal received more than 116,000 comments, many of which appear to be form comments that are part of a coordinated campaign by employee groups to raise the salary threshold to $51,000 or more.

Seyfarth Shaw LLP’s Wage & Hour Litigation Practice Group submitted its own comments to the proposed rule. In those comments, we:

Supported the Department’s decision to use the same methodology for determining the salary threshold as it employed in 2004 (which results in an expected salary threshold of $679/week in 2020);
Supported the Department’s decision to allow non-discretionary bonuses/commissions to satisfy the salary threshold, but requested that the Department increase from 10% the limitation on the amount of the salary threshold that can be satisfied by such payments;
Requested that the Department not increase from $100,000 the salary threshold for the highly-compensated employee provisions;
Supported the Department’s decision to require notice-and-comment rulemaking for future salary increases;
Requested that the Department allow additional forms of compensation (e.g., board and lodging) to be used to satisfy the salary threshold (and to clarify its position on other forms of compensation);
Requested that the Department make no revisions to the duties tests (none were proposed); and
Requested a minimum of 120 days for implementation.
The Department has expressed a desire to finalize this rulemaking by the end of the calendar year, which is an ambitious goal. We will continue to update you as this rulemaking progresses.

In the meantime, next week, we will turn to the final of the three rulemakings at WHD — joint employment.