The Wage and Hour Division of the U.S. Department of Labor (DOL) held public listening sessions on October 30, 2018 to gather views on the Part 541 white collar exemption regulations, the 2016 “Overtime Rule.” Sessions were held in Atlanta, GA, Seattle, WA, Kansas City, MO, Denver, CO, Providence, RI, and Washington DC. A review of the actual transcripts reveals that many different interests presented comments, including human resource professionals, small business, nonprofits, employees, employers, attorneys, and large businesses. Full renditions of the transcripts by city can be found here.

The DOL posed these questions for addressing at the Listening Sessions: Continue Reading Key Takeaways from the Recent Overtime Rule Listening Sessions

While employers continue to prepare for the Department of Labor’s proposed new overtime rules, the DOL’s Solicitor of Labor recently announced that the final regulations will not appear until “late in 2016.” While this gives employers more time to consider how they will handle the changes to the overtime rules, it could also mean a shorter window of time between publication of the final rule and the date which the rule becomes effective. The DOL received more than 290,000 comments to the proposed rule.

You can read more about the DOL’s informal announcement here:

On Labor Day, President Obama announced a new executive order that requires federal contractors to grant paid sick leave to their employees. While the details are still trickling out, we know this much about the order:

  • Provides at least one hour of paid sick leave for every 30 hours worked;
  • Takes into account absences related to stalking, sexual assault, or domestic violence; and
  • Takes effect in 2017.

Under the Family Medical Leave Act (FMLA), most private employers are required to give their employees leave, but they are not required to pay them. Some states, including Massachusetts where Obama announced the new plan, have enacted paid sick leave laws. South Carolina is not one of those states.

While this executive order may not apply to many South Carolina employers, this could be the first step towards legislation mandating paid sick leave for private employers. During the speech, Obama urged Congress to pass the Healthy Families Act, which would do just that. Obama’s announcement is the latest development in his push to alter workplace regulation before leaving office. It follows in the footsteps of the Department of Labor’s proposal to change the overtime rules (see link to our other post), as well as raising the minimum wage for federal contractor employees.


The DOL today issued its long awaited proposed rules changing the salary basis test for those employees classified as exempt under the Fair Labor Standards Act (FLSA).  The salary basis test is one of two tests necessary to determine if an employee is properly classified as exempt. The minimum salary basis for exempt employees is currently $455 a week, yielding an annual minimum salary of $23,660.  This minimum salary basis test has been in effect since August 23, 2004.  The proposed rules purport to update those figures and increase the salary minimum to $970 a week for a minimum annual salary of $50,440.  The DOL believes this would impact about 4.6 million employees.  The DOL has proposed this change to “minimize” the risk that employees legally entitled to overtime will be subject to misclassification based solely on the salaries they receive, without excluding from exemption an unacceptably high number of employees who meet the duties test.”[1]

These amounts were projected after the DOL evaluated the current 40th percentile of weekly earnings for full-time salaried workers because the DOL believes that percentile “represents the most appropriate demarcation between exempt and nonexempt employees.”[2] The proposed rule increases the total annual compensation requirement needed to exempt highly compensated employees from $100,000 to $122,148 annually. The DOL also proposes a mechanism that would automatically update the salary and compensation levels going forward.  The plan is for these rules to take effect in 2016.

The DOL is seeking guidance as to whether to allow nondiscretionary bonuses to satisfy a portion of the salary basis test, whether the standard duties tests are working as intended to screen out employees who are not bona fide white collar exempt employees, and other issues. Comments can be posted electronically at or mailed to D.C.[3] Refer to RIN 1235-AA11.

Having been fortunate to offer employment law advice and counsel to employers for years, I can attest that proper classification of those employees considered exempt is an area where even the most sophisticated employer can be non-compliant. Besides providing comments on those areas the DOL is seeking guidance, Employers should audit their FLSA practices regarding who is classified as exempt in their organizations and evaluate how they might address any effect to their financials caused by the mandatory increase in minimum salaries for exempt employees in their employ.


Continue Reading Proposed New Rule More Than Doubles Minimum Salary for Exempt Employees