by CUPA-HR | April 7, 2022
In the Biden administration’s fall 2021 regulatory agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) announced that it planned to release in April 2022 a Notice of Proposed Rulemaking (NPRM) changing criteria for the “executive, administrative and professional” exemptions from the overtime pay requirements under the Fair Labor Standards Act (FLSA). In May and June, the DOL will host five regional listening sessions allowing stakeholders to discuss the anticipated proposed rule aimed at changing the exemptions to the federal overtime pay requirements.
With listening sessions extending into May, the WHD will not be able to meet the April target date, but we do expect the agency will release a proposed rule in 2022 with compliance likely required in 2023. While the DOL has not shared how it may change the exemptions, it is holding listening sessions to elicit stakeholder input as to whether changes are appropriate and what changes would be appropriate at this time.
Background
According to the regulatory agenda, one of the goals of the NPRM would be “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].” Changes to the overtime exemption minimum salary threshold have been proposed recently under both the Obama and Trump administrations. In 2016, President Obama’s DOL issued a final rule to increase the salary threshold from $23,660 to $47,476 per year and impose automatic updates to the threshold every three years, but the rule was subsequently struck down by federal court before taking effect in 2017. In 2019, the Trump administration issued a new final rule that raised the minimum salary threshold from $23,660 to $35,568 annually, which went into effect on January 1, 2020. The $35,568 threshold remains in effect today.
On March 29, in anticipation of the upcoming Biden administration rule, the DOL held a virtual higher education-specific listening session for D.C.-based higher education associations, including CUPA-HR. The listening session was scheduled after CUPA-HR and 14 other higher education associations submitted a request that the DOL hold such meetings prior to releasing the anticipated NPRM. CUPA-HR and several other higher education associations joined the session to discuss potential concerns institutions may have with an increase to the minimum salary threshold at this time.
Regional Sessions
In addition to the D.C. meeting held in March, the DOL is planning to host five additional regional listening sessions for employers. The sessions include the following:
- Northeast Employers: May 13 at 3:30 p.m. EDT
- Southeast Employers: May 17 at 2:00 p.m. EDT
- Midwest Employers: May 20 at 3:30 p.m. EDT
- Southwest Employers: May 27 at 3:00 p.m. EDT
- West Employers: June 3 at 3:30 p.m. EDT
If your institution is interested in participating in any of the regional meetings, please reach out to CUPA-HR’s Chief Government Relation Officer Josh Ulman at [email protected]. Additional information about the D.C. listening session and CUPA-HR’s talking points will be provided upon inquiry.
