Back in late May, we told you that the Department of Labor had released its required Semiannual Regulatory Agenda. The Agenda, which is not binding on the DOL, included several FLSA-related items. Most importantly, the DOL listed its plans to address the “white collar” overtime exemption regulations with proposed rules next month, in November 2014. The section, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,” appears on page 56 and 57 of the Agenda. At the time, we predicted that “even with a short 30-day comment period and a quick turnaround on a final rule, the DOL is unlikely to have any new regulation in place before spring 2015.”
Late last week, the DOL’s Solicitor of Labor, M. Patricia Smith, confirmed that the DOL will not even meet its self-imposed November 2014 deadline for a proposed rule. Ms. Smith offered that the Department is “months away from a proposed regulation” and hoped to see it rolled out early in 2015. This delay pushes the issue well past the November elections, but does not mean that no final rule will be forthcoming prior to the end of the Obama Administration. Revised regulations are likely a matter of when, not if, so you should be ready to start reassessing your FLSA compliance sometime next year.
Exactly when we can expect a final rule is in flux. Any proposed rule in early 2015 would give the DOL nearly two years to consider any public comments and to prepare a final rule for approval by the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). At the very earliest, a proposed rule released in January/February 2015 could lead to a final rule by late spring or early summer.