DOL Releases Much Awaited Proposed Rule Raising Salary Minimum to $35,308 – Employers Have 60 Days to Comment

By Sharon Gold

On Thursday, March 7, 2019, the Department of Labor (“DOL”) released the much anticipated Notice of Proposed Rulemaking (“NPRM”) that significantly raises the minimum salary for exempt workers from $23,660 to $35,308.  It is estimated that if this rule is finalized, more than a million workers will either become eligible for overtime pay or have their salaries raised to meet the minimum.

Employers will recall that in late 2016, a mere few days before the salary minimum was supposed to be raised to $47,476, a federal judge in Texas blocked the rule.  Since that time, the DOL issued a Request for Information about the salary rule in 2017.  More than 200,000 employers and individuals commented.  In addition, the DOL had six in-person listening sessions in connection with the Request for Information.  The DOL indicated

Texas Judge Blocks Overtime Rule

By: Sharon Gold

In September, 21 states and numerous business groups sued the U.S. Department of Labor (DOL) in a Texas Federal Court attacking the DOL’s Final Rule that raised the salary minimum for workers to be exempt from overtime requirements under the Fair Labor Standards Act (FLSA).  The states filed a motion for preliminary injunction asking the judge to enjoin enforcement of the Final Rule pending a final resolution of their legal arguments against the Rule.  The businesses moved for summary judgment. 

21 States (Including Kentucky) and Several Businesses File Lawsuits Challenging DOL Final Rule Raising Salary for Exempt Workers

By Sharon L. Gold

This week, Kentucky, alongside 20 other states, sued the Department of Labor in a Texas Federal Court.  The states’ Complaint, 4:16-cv-00731, attacks the DOL’s Final Rule that raises the salary minimum for exempt workers.  That same day, numerous businesses and the Chamber of Commerce filed a similar Complaint, 4:16-cv-732, challenging the regulation.

The states contend that the Final Rule infringes upon state sovereignty and federalism by dictating the wages that a state must pay its employees.  The states contend that “as a result of the new overtime rules and the accompanying damage to state budgets, states will be forced to eliminate or alter employment relationships and cut or reduce services and programs.  Left unchecked, DOL’s salary basis test and compensation levels will wreck state budgets.”  States’ Complaint at 84.  As to Kentucky, the Complaint alleges that

DOL Releases Final Rule Raising Minimum Salary for Exempt Workers, Doesn’t Change Duties Tests

By Sharon L. Gold

Speculation about when the DOL would release the final rule raising the minimum salary for exempt workers has ended.  Today, the DOL released the final rule that will be effective December 1, 2016.  The final rule is available here.

The proposed rule was quite controversial, eliciting over 270,000 comments, mostly from employers stating the proposed raises were too extreme.  The Final Rule makes several changes from the proposed rule, including adjusting the proposed amount of the salary requirements, exchanging annual increases for increases every three years, leaving the duties tests unchanged, and allowing bonuses and nondiscretionary bonuses to account for some of the salary minimums.

The DOL estimates that approximately 22.5 million wage and salary workers in the U.S. will be affected by the Final Rule, with 4.2 million workers who are currently exempt becoming eligible for overtime protections if their employers do not raise the salaries.  Final Rule at pg. 9-10.  The DOL estimates that

NLRB Issues Rule to Speed Up the Scheduling of NLRB Representation Elections

By Edwin S. Hopson

The National Labor Relations Board, by a vote of 3 to 2, has issued a final rule published in the Federal Register on December 15, 2014, amending the Board’s representation–case procedures to, among other things, reduce the time between the filing of a petition for representation election with the NLRB and the date of the NLRB election. The rule is to take effect on April 14, 2015.

The final rule was approved by Democrats Mark Gaston Pearce, Kent Y. Hirozawa and Nancy Schiffer, with Republicans Philip A. Miscimarra and Harry I. Johnson III dissenting.

The final rule:

■ Provides for electronic filing and transmission of election petitions and other documents;

■ Adopts best practices and uniform procedures across all NLRB regional offices;

■ Requires that additional contact information for employees voting in the election (personal telephone numbers and email addresses) be included on voter lists to be turned over to the union, to the extent that information is available to the employer; and

■ Consolidates all election-related appeals to the Board into a single appeals process post-election.

The bottom line is, unions will be able to obtain much faster scheduling of elections, substantially reducing the time between the filing of the petition and the election during which the employer can campaign.