On June 27, 2017, the U.S. Department of Labor sent a Request for Information related to the now-enjoined overtime rule to the Office of Management and Budget for review.  After OMB completes its review, the RFI will be published in the Federal Register for public comment.

The new overtime rule, which was to take effect on December 1, 2016, was enjoined on a national basis by a Texas district court last November.  Under the new rule, employers would have had to pay most “white collar” employees a minimum salary of $913 per week ($47,476 annually) to maintain their exemption from the overtime rule.  With the injunction of the new rule, the minimum salary for exemption for most executive, administrative, and professional employees remains $455 per week ($23,660 annually) under federal law.

Prior to the change in administration in Washington, the DOL took an appeal of the injunction, which remains pending before the Fifth Circuit.  The DOL’s reply brief on appeal is due on June 30, and many expect the DOL—now an agency of the Trump administration—to withdraw the appeal later this week.

In testimony yesterday before the Senate Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, Labor Secretary Alexander Acosta noted that the RFI would ask the public to comment on a number of questions that would inform DOL’s thinking on a new overtime rule, including that the proposed salary increases in the enjoined rule were too severe.  Senator Lamar Alexander (R-Tenn.), a member of the subcommittee, noted that the “rapid rate of increase” was “just too high for many parts of the country” and especially burdensome for non-profits and universities.  He urged Secretary Acosta to consider different salary levels for different parts of the country and to extend the advance notice period for any future increases in the salary thresholds.

The RFI confirms that DOL is likely to propose some version of a new overtime rule, consistent with comments that Secretary Acosta made during his confirmation hearings.  What exactly that new rule will look like remains to be seen, but many expect an increase in the salary threshold for exemption to the low $30,000 range.

In his testimony, Secretary Acosta also expressed his “personal goal” to have the vast majority of DOL sub-department leadership identified and in the process of being cleared in short order.  As of today, the offices of Administrator and Deputy Administrator of the DOL Wage and Hour Division, among others, remain vacant.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Rachel Philion Rachel Philion

Rachel S. Philion is a partner in the Labor & Employment Law Department, co-head of the Wage and Hour Practice Group and a member of the Employment Litigation & Arbitration and Class and Collective Actions Practice Groups.

Rachel represents management across all industries…

Rachel S. Philion is a partner in the Labor & Employment Law Department, co-head of the Wage and Hour Practice Group and a member of the Employment Litigation & Arbitration and Class and Collective Actions Practice Groups.

Rachel represents management across all industries in a broad array of employment matters, including wage-and-hour, discrimination, harassment, retaliation, as well as whistleblowing, wrongful discharge and breach of contract disputes.  In addition to jury trial experience, she has extensive experience litigating nationwide class and collective actions.

In addition to Rachel’s active employment litigation practice, she regularly advises clients on litigation avoidance strategies and compliance issues, conducts wage and hour audits and leads workplace investigations.

Rachel was selected as a “Rising Star” by The Legal 500 for 2019 and New York Super Lawyers for 2017-2019.  She is a current member of the Committee on Labor and Employment Law of the New York City Bar Association, and a past member of the Executive Committee of the Labor and Employment Law Section of the New York State Bar Association and former co-chair of the Section’s New Lawyers’ Committee.