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.