The U.S. Department of Labor set new dates in its latest regulatory agenda for several final rules tackling a variety of wage and hour issues including workers' classification, in many cases pushing back the rulemaking timetable once again.
In its regulatory agenda released Tuesday, the DOL said it will issue the final Employee or Independent Contractor Classification Under the Fair Labor Standards Act rule in August, representing another delay since the agency aimed at releasing the rule in May.
Under the rule, a multistep economic realities test would help to determine whether a worker is an employee, and is therefore entitled to certain labor protections like overtime, or an independent contractor. …
The DOL also said it will drop in August its proposed rule on overtime, titled Defining and Delimiting the Exemptions for Executive, Administrative, Professional Outside Sales and Computer Employees. The rule's deadline has been already pushed back three times with the latest indication that the DOL could have released it in May.
The new rule could raise the salary threshold employees would have to cash in for employers to consider them overtime-exempt under the FLSA. The federal law frees employers from the obligation of paying overtime to employees who make a yearly salary of $35,568, or $684 per week.
The delay might be caused by the DOL's effort to try to avoid litigation. A Texas federal court, in fact, previously invalidated an Obama-era overtime rule, and a lawsuit challenging a Trump-era overtime rule is pending in another Texas federal court.
Epstein Becker Green's Paul DeCamp, who led the DOL's Wage and Hour Division under President George W. Bush, told Law360 on Thursday that the DOL's timeline on the rulemaking process hasn't affected any litigation he has been involved in but that the delays are not surprising.
"Some of these areas, including differentiating employees and independent contractors under the Fair Labor Standards Act, involve significant legal uncertainty, but that has been the case for a long time," DeCamp said. “Waiting for the final rules to drop just adds further suspense and drama to the situation, particularly given the potential interplay with Julie Su's confirmation process."