By Susan Prince, JD, M.S.L., Legal Editor

Employers, get ready for a busy summer! Just when you are about to embark on your summer getaways, dreaming of sun and relaxation … you are probably going to have 60 days to make sure you are in compliance with the Fair Labor Standards Act (FLSA) changes. Well, if you don’t see the sun, the stress of these changes for employers will certainly keep you hot under the collar!

According to the experts, the Department of Labor (DOL) is looking to publish its final overtime rules in the Federal Register within the next few weeks. M. Patricia Smith, the Solicitor of Labor, has stated that the Department of Labor’s (DOL) final overtime regulations will likely be effective within 60 days of the date they are published in the Federal Register. That means you will have 60 days to bring your company into compliance with any changes the DOL makes to the current overtime regulations.

The current overtime rules have been in place since 2004, which was the last time the DOL made significant changes to the FLSA regulations. In March 2014, President Obama directed the DOL to modernize and streamline the overtime regulations in a manner consistent with the FLSA’s purpose. The goal is to expand the number of employees eligible for overtime.

On June 30, 2015, the DOL released the proposed overtime regulations in response to the president’s directive and the proposed regulations were published in the Federal Register on July 6, 2015.

The DOL proposes to set the standard salary level at the 40th percentile of weekly earnings for full-time salaried workers. This would raise the salary threshold to about $970 a week ($50,440 a year) in 2016. The DOL proposes to automatically update the standard salary and compensation levels annually either by maintaining the levels at a fixed percentile of earnings or by updating the amounts based on changes in the CPI-U.

The DOL also proposes to set the total annual compensation level for highly compensated employees (HCEs) at $122,148 per year to “ensure that the HCE exemption continues to cover only employees who almost invariably meet all the other requirements for exemption.” The current salary threshold for HCEs is $100,000 annually.

In the Notice of Proposed Rulemaking (NPRM), the DOL noted that the salary threshold for exempt status had not changed in 10 years and that the current threshold of $455 per week for the white collar exemptions and $100,000 per year for the HCE exemption were too low by 2015 standards. In addition, adjusting the salary threshold only through formal rulemaking every 10 to 20 years meant that the threshold was quickly outdated.

Many who submitted public comments stated that annual updating of the salary threshold would not give employers enough notice of the salary level increase to budget for the following year. Some felt that an increase every 3 or 5 years would be easier for employers to handle. Maybe there’s a happy medium between 20 years and annual changes …

In the NPRM, the DOL did not issue proposed rules that would make any changes to the duties tests for the various exemptions from overtime. The DOL has, however, expressed concern that in some instances the current tests may allow exemption of employees who are performing such a disproportionate amount of nonexempt work that they are not white collar employees in any meaningful sense.

Also, the DOL stated that while it is not making specific proposals to modify the standard duties tests yet, it sought comments on whether the tests are working as intended to screen out employees who are not bona fide white-collar employees. Some experts believe the DOL will make changes to the duties tests when the final rules are published, while other experts feel the DOL will stick more closely to the changes originally proposed.

Regardless, implementing the final regulations and making changes to employees’ exempt and nonexempt classifications will undoubtedly take up a good part of the summer for employers.