The latest development in the long saga of attempted changes to the Fair Labor Standards Act (FLSA) regulations on the exempt categories occurred on July 26, 2017 when the US Department of Labor (DOL) issued a Request for Information (RFI) regarding these regulations. The RFI can be found here. Public comments can be submitted by September 25, 2017.
The FLSA regulations which would have raised the salary threshold for exempt employees from $455 a week ($23,660 annually) to $913 a week ($47,476 annually) were enjoined by a federal court in Texas last November shortly before these regulations were to become effective. In appellate briefing in the Texas case, the DOL asserted that it has authority to set an exempt salary level but no longer supports $913 as the weekly salary threshold.
The questions asked by the DOL in the RFI include: Would it be appropriate to adjust the $455 weekly figure (set in 2004) for inflation and, if so, what measure of inflation should be used? Should there be multiple salary levels set based on employer size, census region, state, metropolitan area or some other method? Should there be different salary levels set for the executive, administrative and professional exemptions? Would a duties-only test for the white collar exemptions be preferable? Should the exempt salary levels be automatically increased on a periodic basis?
It now appears that the $913 weekly salary level will not be imposed for exempt employees. It does seem certain, however, that there will be changes made to the FLSA regulations for white collar employees and that these changes will include some type of increase to the exempt employee salary threshold.
If you have any questions about how this may affect your business, please feel free to contact us at (505) 247-0411.