Now that you’ve had some time to mull over the Department of Labor’s (DOL) proposed regulations that increase the salary level employees must earn to be exempt under the Fair Labor Standards Act, it’s time to chime in. As part of this rulemaking project, the DOL is soliciting comments on a wide range of subjects covering exempts. You have until Sept. 4 to comment.
Salary level inquiries
How much exempts must earn is based on their guaranteed weekly salary, and that’s it. The DOL wants to know:
- Should nondiscretionary bonuses and incentive payments be included in the salary level determination, and if they are, how they should be included (e.g., whether they should be limited to 10% of employees’ weekly salaries and whether the time for paying them should be limited to monthly or more frequently)?
- What types of employees earn nondiscretionary bonuses and incentive payments, the types of nondiscretionary pay they receive and to what extent including those payments in the salary level test would advance or hinder the test’s ability to distinguish between exempts and nonexempts?
- What is the appropriate methodology for annually updating the salary level? Option #1: using a fixed percentile of earnings. Option #2: using the Consumer Price Index for all urban consumers (i.e., the CPI-U)
Duties test inquiries
Changing the duties tests exempts must pass isn’t part of this rulemaking project. Nevertheless, the DOL is seeking answers to the following questions:
- What changes should be made to the duties tests? What examples of exempt work could be added to the regulations?
- Must employees spend a minimum amount of time performing their primary duties to qualify as exempt? What should that minimum be?
- Should California law, which requires that 50% of employees’ working time be spent on their primary duties, apply or should a lower threshold apply? Should the DOL reinstate the long test and short test for exempt status? Note: Prior to the 2004 white-collar regulations, the long test required that exempts spend no more than 20% of their time in nonexempt work; the short test had no threshold.
- Does the concurrent duties test for executives, under which they’re allowed to perform exempt and nonexempt duties concurrently, need modification? Should the amount of nonexempt work be limited? To what extent are lower-level executives performing nonexempt work?
How to comment
You may submit comments on paper or electronically; identify comments with: Information Number (RIN) 1235-AA11.
Mail comments to: Mary Ziegler, Director of the Division of Regulations, Legislation and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, D.C., 20210.
Electronic comments can be submitted through the Federal eRulemaking Portal: http://www.regulations.gov/#!home.