Key Issues

DOL’s Wage and Hour Division Announces Overtime Rule Listening Sessions

August 27, 2018 (WASHINGTON INSIDER ALERT) - Today, the U.S. Department of Labor (DOL)’s Wage and Hour Division (WHD) announced it will hold five public listening sessions to gather views on the Fair Labor Standards Act’s white-collar exemption regulations (also known as the “Overtime Rule”). The Federal Register notice, which will be published tomorrow, asks for the public’s input on the following four questions related to the salary level test:

  1. What is the appropriate salary level (or range of salary levels) above which the overtime exemptions may apply?
  2. What benefits and costs to employees and employers might accompany an increased salary level?
  3. What is the best methodology to determine an updated salary level?
  4. Should the department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees?

The five listening sessions will occur throughout the country and will begin on September 7 in Atlanta, Georgia. You can find a full list of locations and times and register to attend any event here.

This is the first action DOL has undertaken to update the overtime rule since July 26, 2017, when the department issued a Request for Information (RFI) on the invalidated Obama Administration’s Overtime Rule. On September 25, 2017, CUPA-HR, joined by 20 other higher education associations, filed substantive comments in response to the RFI.

The comments highlight higher education’s belief that an increase to the salary threshold is due and that DOL has an obligation to update the threshold from time to time to ensure the exemptions are not abused. The comments also outline what we believe to be DOL’s best course of action moving forward. In short, our comments ask the Department to:

  • update the salary threshold by applying the methodology used in 2004 to current salary data;
  • make no changes to the duties test;
  • consider prorating the salary threshold for part-time employees;
  • consider changes to 29 CFR Section 541.600 that would allow the cost of employer-provided room and board to count towards the salary threshold; and
  • not institute automatic updates and instead continue with DOL’s past practice of updating the regulations as appropriate through notice and comment rulemaking.