Paul DeCamp Quoted in “4 Tips for Navigating the Wage Regulatory Landscape”

Now that the U.S. Department of Labor has updated its plans for wage and hour rulemaking, employers should look over their contracts and worker classifications to prepare for coming changes, attorneys said.

The government's June 13 release of its twice-a-year regulatory agenda unveiled updated plans for finalizing rules regarding independent contractors and federal contractor prevailing wages, and for proposing a long-awaited rule addressing exemptions from overtime pay. …

Here, Law360 offers tips on dealing with the upcoming rulemaking.

Rethink OT-Exempt Workers

The DOL's spring regulatory agenda said the agency expects to propose an overtime rule in August. This is the fourth timetable the current administration has set for putting forward the rule, after previous agendas listed April 2022, October and May timetables.

The proposed rule is set to address the salary threshold under which executive, administrative, professional, outside sales and computer employees are exempt from overtime under the Fair Labor Standards Act. The current ceiling is $684 a week, which would be $35,568 a year.

The DOL has increased the salary threshold before, and so employers should consider how they have previously prepared for such changes, said Paul DeCamp of management-side Epstein Becker Green, who led the DOL's Wage and Hour Division under former President George W. Bush.

"Take a close look at the people that you currently have classified as exempt and get a sense of whether you're going to be comfortable increasing the minimum salary for your exempt population to be in line with whatever standard the department issues," DeCamp said. "Or instead, are you going to think about potentially reclassifying people?"

But until the rule is closer to going into effect, employers shouldn't rush to make changes, as a Texas federal court invalidated an Obama-era overtime rule, said DeCamp, who is representing restaurant industry groups challenging a tipped wages rule. …

Look To Joint Employment Case Law

One wage issue not in the regulatory agenda is when entities are jointly responsible for labor law violations. The DOL under President Joe Biden previously rescinded but did not replace a Trump-era joint employer rule, and employers' attorneys have said there is now a regulatory void.

When Republicans in the Senate and House recently pressed acting Labor Secretary Julie Su on whether there would be a new joint employer rule, Su said only that there was no such rule on the current regulatory agenda. She made those before the release of the most recent list.

With no indication of when joint employer rulemaking will happen, employers should look to what courts have said on the subject, attorneys said. …

In the meantime, employers shouldn't think they're off the hook for joint employer liability just because there is no rulemaking around the issue, Epstein Becker Green's DeCamp said.

"There's a lot of case law on joint employment," he said, "and there are plenty of principles out there that guide how businesses ought to look at that issue."