Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360, in “Things to Watch When DOL’s Overtime Rule Finally Drops,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor is close to unveiling its long-awaited plan for scaling back a controversial Obama-era rule that expanded overtime protection for millions of white-collar workers.

In mid-January, the White House’s Office of Management and Budget indicated that it had received for final approval the DOL’s proposed rule updating the Fair Labor Standards Act’s “white collar” overtime exemptions for executive, administrative and professional workers, the last hurdle before a regulation is issued.

The proposed rule is widely expected to scale back a version that was finalized by the Obama administration in 2016 that had doubled the minimum salary required to qualify for the exemptions from $23,660 annually to just over $47,000, increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000 and created an index for future increases.

The 2016 rule — which itself updated a rule from 2004 — was blocked by a federal judge in Texas before it could take effect and an appeal of the trial court’s injunction is pending at the Fifth Circuit. Meanwhile, the DOL in mid-2017 put out a request for information seeking feedback on a wide range of possibilities for superseding the Obama-era rule, from a narrower increase of the salary threshold to a wide-scale overhaul of the rules governing EAP exemptions.

While many employment law observers who have been eagerly anticipating the Trump administration’s proposed rule expect some modest changes to the 2004 version, it remains an open question just how far the DOL will go this time around.

“Everything at this point is still a guess until we see the actual rulemaking document,” said Paul DeCamp, co-chair of Epstein Becker Green’s wage-and-hour practice and a former administrator of the DOL’s Wage and Hour Division during the George W. Bush administration. …

When the DOL’s proposed regulation is issued, the first thing most practitioners and businesses will look at will be the new salary threshold — the minimum amount a worker must earn to qualify for one of the white collar exemptions to the FLSA.

“Barring anything strange and unexpected, the headline will be ‘What is the new salary level?’” DeCamp said. …

DeCamp similarly said that “most watchers of DOL seem to be of the view that we’re likely to see a salary level in the low-to-mid-$30,000” range, a number that Acosta himself has publicly suggested might be the eventual landing point. …

DeCamp highlighted the same issue, saying the DOL would likely have to gear up for a legal challenge from the employer side of the bar should it decide that automatic increases be included in the final rule.

“I think that if the department goes in the direction of the automatic updating, that will be teeing up a fight and I’m not sure that they’re going to want to go in that direction,” DeCamp said. “That’s something that the business community will be watching very closely.” …

Besides basic questions surrounding EAP exemptions, the DOL also offered a wide range of other proposals in its request for information regarding changes that could be made to the exemptions. …

Though exactly what the DOL will choose to include in its proposed rule is not yet known, DeCamp said it’s unlikely the agency will adopt the more ‘exotic’ ideas it floated as part of the request for information.

“I don’t think we’re going to see some of the more exotic concepts suggested in the request for information built into the rule,” DeCamp said. He also said he would be “surprised” if the DOL chooses to make changes to the job duties test.

“They certainly could in the rulemaking and there’s obviously room for people to comment on what the job duties test ought to be even if there isn’t anything said about it in the rulemaking document itself,” DeCamp said. “But I’d be surprised if the secretary took that on because that invites a lot of comments, and a lot of details and a lot of work on the back end that makes getting to a final rule more challenging.”


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