DOL had previously planned to release the proposed rule in October 2022. President Biden touted increasing the salary threshold throughout his presidential campaign. Before publication of todays proposed rulemaking, the departments Wage and Hour Division considered feedback shared by stakeholders in forums during the summer of 2022 and will now solicit comments on the proposed rule from interested parties. Of note, in 2016, the Obama administration attempted to raise the salary basis threshold from $455/week to $921/week. The U.S. Department of Labor (DOL) recently published its spring regulatory agenda containing a tentative date of October 2022 for a proposed overtime rule. "Thus, it is premature to make internal changes to pay policies in anticipation of the rulemaking. Supreme Court: Salary, Not Daily Pay, Required for FLSA Overtime Exemptions. @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} Department of Labor Intends to Extend Overtime Pay Requirements to More Workers. The salary basis threshold was increased in 2019 from $23,660/year to $35,568/year. Once a sleepy area of employment law, the FLSAs regulations took the spotlight when the Obama administration announced its intent to update the rules floor for overtime eligibility. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. The law covers virtually every employer . OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released and generally takes 30-90 days for this review, indicating ICE is on target to issue their proposal in July. The FTC is accepting public comments on the proposed rule until March 10, 2023, and they can be submitted online. #block-googletagmanagerfooter .field { padding-bottom:0 !important; } He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. While this aspect of the exemption rules is not anticipated to change with the 2022 proposed rule changes, the duties test is important to remember when considering the classification of a particular role. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. Agency: Department of Labor(DOL) Priority: Economically Significant RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage Major: Yes Unfunded Mandates: Undetermined CFR Citation: 29 CFR 541 Shannon Meade is executive director of Littler's Workplace Policy Institute in Washington, D.C. 2023 Littler. The following roles are exempt from overtime: The salary test is where we expect to see changes. The salary basis threshold has been raised numerous times since Congress enacted the FLSA in 1938. We also anticipate some proposed changes to the duties tests. Guidance materials about overtime topics, including an Employment Law Guide, Qs & As, guide to overtime laws in the states, and more. .manual-search-block #edit-actions--2 {order:2;} According to FTC Chair Lina M. Khan, Noncompetes block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand. The FTC cited research showing that noncompete agreements restrict the mobility of impacted workers thus harming competition in the labor markets. In May 2016, the Obama administrations DOL issued afinal ruleincreasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. Members may download one copy of our sample forms and templates for your personal use within your organization. Preventing and remedying systemic harassment including sexual harassment and harassment based on race, disability, age, national origin, religion, color, and sex (including pregnancy, sexual orientation, and gender identity). The Overtime Rule. Monday, November 7, 2022. The Equal Employment Opportunity Commission has settled a COVID discrimination case and also published for public comment its draft strategic enforcement plan. More than 54,000 people submitted comments on the rule. While the employer allowed other employees in her position to work from home, it denied her request and shortly thereafter terminated her employment. "If any of these issues make their way into new regulations in any significant way, litigation is assured.". Democrats want OT salary threshold upped to $82,732 by 2026. Another item on the list of DOL priorities may be the creation of an automatic annual or periodic increase to the salary level by indexing it to the consumer price index or another economic indicator so that the amount will increase without the DOL having to undertake formal rulemaking. In its recent spring regulatory agenda, the U.S. Department of Labor (DOL) announced its plans to issue a proposed overtime rule in October 2022. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. $("span.current-site").html("SHRM MENA "); Shortly thereafter, President Donald Trump took office and DOL abandoned its defense of the rule. An employee's workweek is a fixed and regularly recurring period of 168 hours seven consecutive 24-hour periods. The exempt duties generally fall within those categories, and each category has different criteria: The salary level was last adjusted effective January 1, 2020 when it was raised to the $684 per week level (equivalent to $35,568 per year for a full-year worker). More than 100 business and industry groups are urging the U.S. Department of Labor to seek public input before it releases a highly anticipated rule to update overtime pay regulations that is expected to extend time-and-a-half wages to more workers. Effective Jan. 1, 2022, the minimum wage in California will increase to $15 per hour for large employers with 26 or more employees; it will increase to $14 for small employers with fewer than 25 employees. With so many agencies experiencing staffing shortages and difficulties hiring new . Comments on the draft plan must be submitted by February 9, 2023. The Internal Revenue Service has increased by three cents per mile, the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes. Affiliate of the Society for Human Resource Management, Home Blog 2022 DOLS PROPOSED OVERTIME RULE. $("span.current-site").html("SHRM China "); The division encourages all stakeholders to participate in the regulatory process. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Once proposed, stakeholders will have an opportunity to comment before the agency finalizes its rule. Ultimately, Judge Amos Mazzant in the United States District Court for the Eastern District of Texas enjoined the new threshold from going into effect after determining the salary increase of more than 100% contravened Congresss intent by supplanting the job duties test and creating a de facto salary-only test. At the time, the DOL estimated that the $921/week threshold would make more than 4.2 million workers ineligible for a white-collar exemption and eligible for overtime pay. Although the DOL will almost certainly grant employers several months of lead-up time before implementing the new threshold, understanding the potential impact of a dramatic increase now will help employers adjust in the future. .manual-search ul.usa-list li {max-width:100%;} Effective Jan. 1, 2020, the federal minimum salary threshold increased to $684 a week. With the issuance of its spring regulatory agenda on June 21, the U.S. Department of Labor (DOL) announced that its proposed overtime rule is now tentatively slated to be released in October. NAM Vice President of Infrastructure, Innovation and Human Resources Policy Robyn Boerstling joined us to explain what's happening. However, on March 14, 2022, a district court vacated the Department's rules to delay and withdraw the Independent Contractor Status Under the Fair Labor Standards Act . The proposed rule . FLSA requirements relating to minimum wage, overtime, and . The proposal will likely amend the Trump administration's final . Labor Rights. While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nations most vulnerable workers, said Secretary of Labor Marty Walsh. SUMMARY: This notice of proposed rulemaking (NPRM) proposes to rescind the final rule entitled "Joint Employer Status Under the Fair Labor Standards Act," which published on January 16, 2020 and took effect on March 16, 2020. Now, the DOL is considering a new overtime rule and the proposal is expected to hit this coming fall. . The site is secure. .usa-footer .grid-container {padding-left: 30px!important;} It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Whitepaper & Research Library India & APAC, Advanced Certificate in Human Resource Management (ACHRM), Advanced Human Resource Management Program (AHRMP), Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions, Proposed Overtime Rule Scheduled to Be Published in May, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, White House Takes Action Against Migrant Child Labor, How to Handle Overtime, Meal Break and Other Wage and Hour Crises. Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. Tuesday, February 28, 2023. Procedures on voluntary recognitionof unions. ACTION: Notice of proposed rulemaking; request for comments. Before sharing sensitive information, make sure youre on a federal government site. Revert to the longstanding interpretation of the economic reality factors. The overtime salary threshold limits will increase for the following states: California To qualify for the overtime exemption, licensed physicians and surgeons must earn at least $91.07 per hour. $("span.current-site").html("SHRM MENA "); Its latest regulatory agenda lists May 2023 as the target date for two key Fair Labor Standards Act (FLSA) developments: a proposed overtime rule and a final independent contractor rule. Among the subject matter priorities included in the draft plan are: IRS Increases Mileage Rates by Three Cents The Internal Revenue Service (IRS) advised that the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes increased by three cents to 65.5 cents per mile effective on January 1, 2023. The agency already has missed its target for the overtime rule twice. The DOL plans to make the changes effective in 2023. ("WHD") plans to develop and release in April 2022 a Notice of Proposed Rulemaking ("NPRM") on "the exemption of bona fide executive, administrative, and professional . In the Biden administration's fall 2021 regulatory agenda, the Department of Labor (DOL)'s Wage and Hour Division (WHD) announced that it planned to release in April 2022 a Notice of Proposed Rulemaking (NPRM) changing criteria for the "executive, administrative and professional" exemptions from the overtime pay requirements under the Fair Labor Standards Act (FLSA). The most common exemption categories are known as the white collar exemptions: executive, administrative and professional. As we previously reported in our New Year's Update for 2022, the US Department of Labor (DOL's) regulatory agenda included proposed rulemaking on the Fair Labor Standards Act (FLSA) overtime rules by April 2022. Virtual & Washington, DC | February 26-28, 2023. The materials and information included in the XpertHR service are provided for reference purposes only. DOL/Employee Benefits Security Administration (EBSA) Congress must also have keen insight of the administration's regulatory plans to assess its budget requests and operations. Preserving access to the legal system focusing on overly broad waivers, releases, non-disclosure agreements or non-disparagement agreements, mandatory arbitration provisions, failure to keep applicant and employee data and records, and retaliatory practices that dissuade employees from exercising their rights. President Joe Biden directed the DHS on Jan. 20, 2021, to take all appropriate actions to preserve and strengthen DACA, consistent with applicable law. brookstone therapeutic percussion massager with lcd screen; do nigel and jennifer whalley still own albury park Washington, DC 202101-866-4-US-WAGE1-866-487-9243, Administrator Interpretations, Opinion and Ruling Letters, Resources for State and Local Governments. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { The US Department of Labor (DOL) now intends to propose new Fair Labor Standards Act (FLSA) overtime rules this October, six months later than originally planned. Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA. A Davis-Bacon Act final rule is now scheduled for December. For example, the lack of transparency in knowing what to expect makes it more difficult to hold the administrative state accountable for its plans. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. The US Department of Labor (DOL) is planning for a busy springtime. Employees paid below that figure must receive time-and-one-half their regular rate of pay when they work more than 40 hours in a workweek. In December 2022, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders. Oct 11 2022 10:37 AM EDT Updated Tue, . Background on the new overtime proposal. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agencys regulatory actions for the coming year. -1) { Every employer of employees subject to the Fair Labor Standards Act's minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments. The DOL noted in its agenda that the Occupational Safety and Health Administration (OSHA) has already issued an emergency temporary standard to address the danger of COVID-19 in health care workplaces. Employers should carefully review all pay practices, exemptions from overtime, and potential FLSA liability in light of these potential changes. "If there is a significant increase in the salary-basis level for the executive, administrative and professional exemptions, this change will require employers to identify and . }); if($('.container-footer').length > 1){ The California standards require that more than 50 percent of the employee's time be spent solely on performing exempt duties in orderto be classified as exempt, he noted. From March 2020 through June 2020, employees were required to work remotely four days per week due to the COVID-19 pandemic. One other item that may be in play is the duties test, Boonin added. Though it marked the first increase to the FLSA's overtime threshold in over a . The U.S. Department of Labor (DOL) announced in its spring regulatory agenda in mid-June that a proposed new overtime rule will be released later this year. The DOL initially planned to issue this new proposal in April 2022. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned. (2015). In the Fall 2021 Regulatory Agenda, the DOL's Wage and Hour Division (WHD) announced plans to issue an NPRM as early as April 2022 to address overtime pay requirements for certain white-collar employees.1 Since 1938, the Fair Labor Standards Act (FLSA or Act) has established the minimum wage and overtime pay Please enable scripts and reload this page. Misclassification is a serious issue that . On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the June 2012 memorandum that created the DACA policy and permanently blocked the DHS from administering the DACA program and from reimplementing DACA without compliance with the Administrative Procedure Act. The overtime rule was first slated for April 2022 and then for October 2022, so another delay would not be unusual. The Department delayed the rule on March 4, 2021, and then withdrew it on May 6, 2021, believing that it was inconsistent with the Fair Labor Standards Act's text and purpose. FTC Proposed Rule Would Ban Noncompete Agreements The Federal Trade Commission (FTC) has proposed a rule that would ban employers from imposing noncompete agreements on their employees. The proposed rule would provide guidance on classifying workers and seeks to combat employee misclassification. While that guidance is onlytemporary, DHS issued aRequest for Public Input (RPI) on October 26, 2021, to determine whether those flexibilities should be kept in place permanently. Those changes, however, were less significant than the 2016 efforts to modify FLSA provisions, which were halted later due to a preliminary injunction. U.S. Department of Labor (DOL)/Wage and Hour Division (WHD), DOL/Office of Labor-Management Standards (OLMS), DOL/Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA). Regulatory agenda lists the status of anticipated regulatory actions. .paragraph--type--html-table .ts-cell-content {max-width: 100%;} The upcoming proposal is likely to mirror or even exceed the changes anticipated in 2016. Federal government websites often end in .gov or .mil. Conversely, there is nothing stopping the DOL from issuing new rules before its target dates, either. Any information you send to Locke Lord LLP through this website is on a non-confidential and non-privileged basis. Changes to overtime pay requirements have beenimplementedthrough regulations under both the Obama and Trump administrations. DOL addressed the topic again in 2019 and enacted changes on January 1, 2020. } .manual-search ul.usa-list li {max-width:100%;} The Act applies on a workweek basis. To find out more about our use of cookies and how to change your settings, please go to our Privacy Policy. The key labor and employment regulatory actions included in the fall agenda are listed below. In publishing the proposed new rule . * * *On October 11, 2022, the U.S. Department of Labor released a proposed rule to update the test for determining whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor. USCIS Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, In May 2023, the Department of Homeland Security (DHS)s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. The NPRM will specifically propose to revise the regulations relating to employer-employee relationship and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address cap-gap issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions., ICE Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9), According to the Regulatory Agenda, DHS plans to issue an NPRM in July 2022 to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.. . .usa-footer .container {max-width:1440px!important;} 213(a)(1), exempts any employee employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the [Administrative Procedure Act.]) While the specifics remain unknown, some labor law experts speculate that it will: Increase the weekly threshold from $684 to $900--$1,000. 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