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Department of Labor Seeks Public Comment on Appropriate Salary Level Threshold for Exempt Employees

By: J. Tyler Mayhew
Bowles Rice Labor and Employment e-Alert
July 27, 2017

On July 26, 2017, the Wage and Hour Division of the United States Department of Labor (the "Department") published a request for information from the public, seeking information to be used in reviewing the Department's 2016 Final Rule increasing the minimum required salary level for "white collar" employees that are exempt from the minimum wage and overtime protections of the Fair Labor Standards Act ("FLSA"). 81 FR 32399-32400.

Among other provisions, the 2016 Final Rule would have raised the minimum salary level from $455 per week to $913 per week, and included a provision that would automatically update the required salary level every three years. The 2016 Final Rule was set to take effect on December 1, 2016; however, the United States District Court for the Northern District of Texas issued a nationwide injunction which prohibits the Department from implementing or enforcing the rule. See Nevada, et al., v. U.S. Dep't of Labor, et al., 218 F. Supp. 3d 520, 534 (E.D. Tex. 2016), appeal pending, No. 16-41606 (5th Cir.). The Department appealed the court's injunction, but has stated that it no longer intends to defend the specific salary increase set by the 2016 Final Rule. Instead, the Department intends to undertake additional rulemaking to revise the salary level, and is soliciting public comment on what the appropriate salary level should be.

The Department intends to revise the 2016 Final Rule to address concerns that the proposed salary level was too high. The Department is seeking public input to determine whether the salary level in the 2016 Final Rule effectively identifies exempt employees, whether a different salary level would more appropriately identify exempt employees, the basis for setting a different salary level, and why a different salary level would be more appropriate. The Department has posed eleven different questions in its request for information, and seeks public comment on those questions.

The Department's public comment period is now open and closes on September 25, 2017. The Department's 2016 Final Rule significantly increased the minimum salary levels for determining exempt employees. If the Department's 2016 Final Rule would have adversely impacted your business or industry, now is the time to take action and be heard. A link to the Department's request for information, which includes instructions on how to submit comments, is set forth below:

https://www.federalregister.gov/documents/2017/07/26/2017-15666/request-for-information-defining-and-delimiting-the-exemptions-for-executive-administrative