During today's session of the 2016 American Bar Association's (ABA) Midwinter Meeting of the Federal Labor Standards Legislation Committee, the U.S. Department of Labor (DOL) Solicitor of Labor M. Patricia Smith announced that the DOL's Final Rule regarding the Fair Labor Standards Act (FLSA) White Collar Exemption Regulations will be published in July 2016, with an effective date of 60 days later. This timeline is consistent with the DOL's semi-annual regulatory agenda released late last year, which also proposed a July 2016 Final Rule timetable.
Last July 2015, the DOL issued proposed amendments to the White Collar Exemption Regulations, which are discussed in further detail here. After a 60 day comment period, and almost 300,000 comments received, conflicting reports regarding the anticipated timing of the Final Rule's publication were provided. However, Solicitor Smith's comments today appear to confirm that the Final Rule will be issued in July 2016, and not "late July" as some publications suggested.
This is of course no surprise as this initiative is amongst the administration's highest priorities. In 2004, the last amendment to the White Collar Exemption Regulations, the DOL provided 90 days for comments and the Final Rule became effective 120 days after publication. This time around, the DOL provided 60 days for comments, refused requests to extend the deadline, and has now stated that it is anticipated to be effective only 60 days after publication.
Just last week, on February 9, 2016, over 100 members of the US House of Representatives signed a letter written to Secretary of Labor Thomas E. Perez expressing concern with the proposed rules, particularly their ambiguity as to any proposed changes to the duties requirements, and requested that the DOL "reconsider moving forward with this rule as drafted." There was no mention of any possible Congressional Review Act challenge to the Final Rule, though this is certainly an avenue that Congress may attempt to utilize if it is dissatisfied with the Final Rule.
Regardless of any such challenge, the Final Rule is coming. Employers must prepare themselves as the Final Rule will undoubtedly result in a substantial increase in non-exempt workers, wage and hour litigation, and compliance related issues.
If you have any questions about the DOL's proposed amendments and eventual Final Rule, recommended steps for your company to take in response, would be interested in a free audit proposal, or have any other wage and hour issues, please feel free to contact Salvador Simao, firstname.lastname@example.org, head of FordHarrison's Wage and Hour Practice Group, or David Kim, email@example.com. You may also contact the FordHarrison attorney with whom you usually work.