The U.S. Department of Labor has announced that on Wednesday, July 26, 2017, it will formally seek public comment on the overtime rule by publishing a Request for Information (RFI).

The overtime rule would have required employers to pay most executive, administrative, and professional employees at least $913 per week in order to exempt them from overtime pay. But the rule has been blocked by a federal court since November 2016. The DOL is pursuing an appeal that asks the Fifth Circuit to address whether the DOL has the authority to set a salary level test (without addressing whether the $913per week salary level was lawful).

Labor Secretary Alexander Acosta has hinted that the DOL is likely to propose a new version of the overtime rule—one that potentially sets the salary threshold below $913 per week but raises it from the current level of $455 per week.

The DOL will use the RFI to seek public comment on eleven questions, including:

  • Whether the salary threshold should vary based on factors like size of employer, census region, census division, state, metropolitan statistical area, or some other method;
  • Whether executive, administrative and professional employees should be subject to different salary thresholds;
  • Whether employers increased salaries of exempt employees (to $913 or more) in anticipation of the overtime rule going into effect or whether employers adopted other strategies to deal with employees who would have been newly eligible for overtime pay under the rule;
  • Whether a test for exemption that relies solely on duties (and does not consider salary) would be preferable, and, if so, what duties should be included; and
  • Whether the salary threshold should be automatically updated from time to time, and, if so, how updates should be calculated.

A preview copy of the RFI is currently available. The 60-day comment period for all issues raised in the RFI will end on September 25, 2017.

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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 TimesReutersBloomberg 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.