Paul DeCamp Quoted in “Axing Trump Rules, Biden DOL Charts New Wage-Hour Path”

Law360 Employment Authority

Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360 Employment Authority, in “Axing Trump Rules, Biden DOL Charts New Wage-Hour Path,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

Nearly six months into President Joe Biden's administration, the regulatory agenda has largely consisted of pausing and rolling back wage and hour policies the government began under former President Donald Trump.

In recent weeks, the young administration has begun to shift toward enacting new rules of its own at the U.S. Department of Labor. …

Work Underway on New Overtime Rule

One regulatory action in the early stages of development is an open question, because the DOL hasn't revealed its plans.

Labor Secretary Marty Walsh raised questions when he shared during a House oversight hearing on June 9 that the DOL is working on an update to the overtime salary threshold. Currently set at about $35,500 per year, employees who earn below this amount are generally entitled to time-and-a-half pay when they work more than 40 hours in a week. …

Paul DeCamp, a former WHD administrator who represents employers as co-chair of Epstein Becker Green's wage and hour practice group, told Law360 that a court challenge would likely follow if the DOL moves to raise the threshold too drastically or include automatic updates, which the FLSA doesn't mention.

"I don't think most of the business community is going to have much heartburn if the department increases the salary threshold for the exemptions somewhat," said DeCamp, a member of Law360's employment editorial advisory board. "But if they do this in a way that makes the exemptions much more difficult for employers to use, thereby potentially thwarting the intent of Congress in creating the exemptions in the first place, expect to see constitutional challenges to the FLSA's exemption scheme."

Subregulatory Enforcement Changes

The Biden administration has made two other shifts at the DOL that matter for employers.

First, the DOL terminated the Payroll Audit Independent Determination, or PAID, program on Jan. 29. It allowed employers that owed workers unpaid wages to fess up with some cover. …

Another enforcement change the DOL made under Biden was reviving an Obama-era policy of seeking a penalty on top of unpaid wages equal to 100% of the back pay owed. …

DeCamp said it's normal to see a new administration change how agencies enforce the law, but frequent or extreme shifts create compliance difficulties.

"The bigger challenge for employers is going to be that what we see here is continuing pendulum swinging," DeCamp said. "It's challenging for employers to know what to do when you're trying to plan."