In the latest development in the long saga involving the overtime rule, the Department of Labor has now issued its long-awaited proposed revision to the regulations governing which employees are exempt from the requirement to pay overtime for all hours worked over 40 in a workweek.

The Current Rule: The current overtime rule, which took effect in 2004, sets forth three tests, all of which must be met in order for a white-collar employee to be deemed exempt: (1) the employee must be paid on a salary basis; (2) the employee’s salary must be at least $455 per week (equaling $23,660 per year); and (3) a duties test specific to the exemption in question – executive, administrative or professional (EAP).  There is also a highly-compensated employee (HCE) exemption, under which an employee must make at least $100,000 per year (in addition to being paid at least the standard salary level per week on a salary or fee basis) and perform at least one exempt duty.

The First Attempt to Revise the Rule: As employers may remember, the DOL issued a revision to the overtime rule in 2016. The salary levels for the EAP and HCE exemptions were vastly increased – to $47,476 per year ($913 per week) and $134,004, respectively. The rule also contained an automatic increase to the salary levels every three years. There was immediate outcry from the business community, and litigation ensued. Only days before the rule was to take effect, it was enjoined by a federal court in Texas, which found that the new salary level exceeded the DOL’s authority. Under the Trump administration, the DOL then indicated that it would issue new regulations, for which the business community has been waiting.

The New Proposed Rule: The proposed rule rescinds the 2016 rule and contains changes to the salary levels for the EAP and highly compensated exemptions, so that, according to the DOL, they maintain their usefulness in “screening out the obviously nonexempt employees.”

The DOL proposes to set the EAP salary level at $679 per week ($35,308 per year). In setting this number, the DOL used the same methodology that was used to set the salary level in 2004 – the 20th percentile of earnings for full-time salaried workers in the lowest income U.S. Census region (currently the South) and in the retail sector, projected forward to January 2020, when the DOL expects the final rule to take effect. By using the same methodology to calculate the salary levels as it did in 2004 – which was never challenged – the DOL is admittedly hoping to avoid further litigation over its attempts to increase the salary level.

In addition, the DOL proposes to set the required annual salary for the HCE exemption at $147,414. As under the 2004 rule, this number is based on the 90th percentile of full-time salaried workers nation-wide (rather than the regional data used for the EAP exemptions).

As it had previously done in the 2016 regulations and for the stated purpose “to align the regulations better with modern pay practices,” the DOL has included a provision allowing employers to count nondiscretionary bonuses, incentives and commissions for up to 10% of the EAP salary threshold. Examples of such payments cited by the DOL include nondiscretionary incentive bonuses tied to productivity and profitability. Under the proposed rule, these payments must be made on an annual (using any 52-week period or, by default, a calendar year) or more frequent basis. In addition, if an employee’s salary plus these additional payments do not reach $35,308 for the year, the employer may make a “catch-up” payment no later than the next pay period after the end of the year. This catch-up payment would only count towards the prior year’s salary, and may not be counted in the year it was paid. (Of note, the HCE exemption already permits employers to count commissions, nondiscretionary bonuses and other nondiscretionary compensation towards the total required salary above the standard weekly salary level, and permits a catch-up payment in the month after the end of the year).

Of particular note, the DOL is not including automatic increases to these salary levels as part of this proposed rule. Rather, it states that it will propose updated salary levels every four years, using the regulatory notice and comment process. Those updates will utilize the same methodology as the 2004 and now-proposed rule to set the salary levels described above.

The DOL projects that, without intervening action by their employers, approximately 1.1 million individuals will become eligible for overtime under the revised EAP salary level, while approximately 200,000 individuals will do so under the revised HCE salary level. (This is in contrast to the 2016 rule, which would have affected 4.2 million workers.)

Interestingly, in its extended analysis of the anticipated impact of this proposed rule, the DOL acknowledges that there may be some negative consequences. For example, employers may incur ongoing managerial costs related to developing work schedules and monitoring hours worked to minimize or avoid overtime. Newly non-exempt workers may lose the flexibility in scheduling that they enjoyed as exempt employees. In addition, they may lose certain benefits offered only to salaried exempt employees. The DOL also acknowledges that the increased labor costs could result in higher prices for consumers and/or reduced profits for employers. And, of course, employers may seek to reduce costs by reducing workers’ hours in order to avoid overtime – thereby disadvantaging lower-wage workers – while exempt workers may see an increase in workload to make up for those hours.

What Happens Now: There will be a 60-day comment period following publication of the Notice of Proposed Rulemaking in the Federal Register. You may submit comments electronically at Once the 60-day period has closed, the DOL will take some time to consider the comments and then subsequently issue the final rule. The DOL has also posted a Fact Sheet and Frequently Asked Questions on the proposed rule to its Overtime Rule webpage.

Notably, many employers had already come into compliance with the last version of the revised overtime rule, so the revised rule should have no impact on them. Employers that were less proactive at that time may await the issuance of the final rule before taking any steps. There will be some period of time after the final rule is issued before it takes effect, which will allow for those employers to plan for compliance.

For all you employment litigators, we just learned that you don’t have to file a Freedom of Information Act (FOIA) request with the Equal Employment Opportunity Commission (EEOC) in order to get its file on a plaintiff’s charge of discrimination! What?! Our (admittedly somewhat limited) world has been rocked! Continue Reading FOIA Request to the EEOC – Maybe Think About Section 83 Instead?

And with that elegantly pointed statement, the U.S. Supreme Court vacated an opinion on the Equal Pay Act that had been issued by the en banc U.S. Court of Appeals for the Ninth Circuit (i.e. the entire group of judges on the Ninth Circuit bench). The opinion had been authored by Judge Stephen Reinhardt, who unexpectedly passed away on March 29, 2018. The opinion was not issued until April 9, 2018 – 11 days after his death. Continue Reading “…federal judges are appointed for life, not for eternity.”

Last week, the Equal Employment Opportunity Commission announced that it entered into a consent decree resolving its race discrimination lawsuit against a union representing firefighters. This is particularly ironic, given that unions hold themselves out as advocates for workers’ rights. Continue Reading Yes, Unions Discriminate Against Workers Too!

In my occasional series on the crazy things that employees do, here’s one that, in reality, is probably not all that uncommon. Many people use their personal cell phones for work. And as a matter of habit, they may plug their cell phones into their work computer – maybe to sync it or charge it. But what they aren’t thinking about is that the work computer backs up the content on the phone. All. Of. It. (Unless the employee is technically savvy enough to back up only portions of it. Let’s be frank – most people aren’t that savvy.) Continue Reading Extraordinary Employee Misconduct: Saving Nude Pictures to Work Computer!

Employer obligations to consider the use of medical marijuana as a reasonable accommodation just got murkier with a new case out of Delaware, Chance v. Kraft Heinz Foods Co., decided in December 2018. Continue Reading Another State Finds No Federal Preemption of Its Medical Marijuana Law

Maryland lawmakers have introduced a bill that would increase the minimum wage to $15.00 per hour by 2023. Notably, the State’s minimum wage is currently $10.10 per hour, which is significantly greater than the federal minimum of $7.25. Many progressive leaders and newly elected legislators do not think Maryland’s current minimum wage is high enough, and as a result, there has been an increased push to pass the proposed legislation. If enacted, Maryland would join the notoriously employer-unfriendly jurisdictions like California, New York, Massachusetts, New Jersey, and Washington D.C. If the experience in those States is a guide, the increased minimum wage would increase the cost of doing business in Maryland, create incentives to deploy technology to reduce labor costs, harm workers who are least skilled (by making them less attractive “at the price” vis-à-vis more skill peers), and create severe obstacles for businesses operating within the State.  Continue Reading Fight Against $15! An Opportunity to Testify Before the Maryland General Assembly

So, you say you want to avoid employment jury trials?  Let’s talk.

The Federal Arbitration Act (and the law of virtually all States that have enacted a version of the Uniform Arbitration Act) favor arbitration.  Contractual agreements that clearly and unmistakably set forth an intent to arbitrate disputes normally will be enforced (barring a judicial “lapse of judgment”).  Key benefit: in arbitration, there is no jury!  Employers know that juries are fickle, and may decide an issue based on empathy and anger rather than the rules of law enunciated in the jury instructions.  Continue Reading One! Two! Three! Four! What Do You Say We’re Fighting For? Arbitration!

My brilliant law partner, Fiona Ong, explained last week about why it is unwise to treat a reduction in force (“RIF”) as a “golden opportunity” to rid yourself of those pesky under-performers whose deficiencies were not documented properly.  (We do know why there is no documentation, BTW.  Those underperformers often are gifted at deflecting responsibility, and honest performance evaluations require, well, honest feedback, which unpleasant people abhor.  For managers, who just want to do their jobs, it is much easier to select “meets expectations, meets, meets, meets” than lose hours debating the ratings.)  Continue Reading Now that You Know that a RIF Is Not a “Magic Bullet” (Performance Management Advice for Managers in Five Easy Pieces)

Some employers view a reduction in force as an apparently easy and clean way to get rid of employees they do not want – like poor performers, who have not been properly performance-managed.  There may even be less appropriate considerations in mind – an older employee viewed as slowing down, an employee with health problems who has missed a lot of work, a pregnant employee who will need leave after her child’s birth. These employers assume that if the employee accepts a severance package and signs a release, the matter is closed.  The case of Hawks v. Ballantine Communications, Inc., however, highlights the peril of such thinking. Continue Reading RIFs Are Not the Easy Solution for Problem Employees