Actions by the federal Department of Labor portend an apparent shift toward a more employer-friendly wage and hour policy.
In early June, the DOL withdrew Obama-era guidance that called for an expansive definition of joint employment relationships and stated that most workers were employees (and not independent contractors). Weeks later, the DOL announced that it would reinstate its historical practice of issuing opinion letters. Such letters are an official, written opinion by the DOL’s Wage and Hour Division about how a law applies to the specific situation described by a requesting employer, employee or other inquirer. From 2010 to 2016 under the Obama administration, the DOL had replaced that practice with use of more general interpretive guidance, publishing 11 interpretations during that period. U.S. Secretary of Labor Alexander Acosta explained that the opinion letters facilitate better understanding of the Fair Labor Standards Act and other statutes and expressed the DOL’s commitment “to helping employers and employees clearly understand their labor obligations so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”
Additionally, the DOL has indicated that it intends to revisit the embattled salary threshold in its enjoined overtime rule. In a brief recently filed regarding the enjoined rule (previously reported in the Winter 2017 Update), the DOL asked the court to confirm its authority to set a salary minimum without addressing the validity of the specific salary threshold—$47,476 annually—set by the rule. The DOL opted not to advocate for the minimum, indicating instead that it “intends to undertake further rulemaking to determine what the salary level should be.” Indeed, on July 26, 2017, the DOL published a Request for Information (the mechanism for seeking public comment) on the overtime rule, specifically seeking feedback on the salary level test, methodology for calculating the salary threshold, automatic updating of the salary threshold, and the interplay of the salary level and duties tests. Public comments may be submitted on or before September 25, 2017. These actions are consistent with Secretary Acosta’s prior comments that the minimum salary for exempt employees must be updated to keep pace as “life gets a lot more expensive” but that the current threshold was excessive.