The federal Department of Labor (DOL) has released proposed changes to the overtime regulations and has invited comments from the public on several issues. The DOL seems to indicate that more changes, especially to the duties tests, may be coming.

There is speculation that the final regulations will include changes to the duties test for the executive exemption, and they may impose a bright line test requiring that the primary exempt duties be 50 percent of the exempt employee’s work. It is also possible that the DOL will issue a second proposed rule addressing the duties tests.

The DOL is inviting comments on several overtime issues during the comment period. Specifically, the DOL seeks comments on the following issues:

• What, if any, changes should be made to the duties tests?
• Should employees be required to spend a minimum amount of time performing work that is their primary duty in order to qualify for exemption? If so, what should that minimum amount be?
• Should the DOL look to California’s law (requiring that 50 percent of an employee’s time be spent exclusively on work that is the employee’s primary duty) as a model? Is some other threshold that is less than 50 percent of an employee’s time worked a better indicator of the realities of the workplace today?
• Does the single standard duties test for each exemption category appropriately distinguish between exempt and nonexempt employees? Should the DOL reconsider its decision to eliminate the long/short duties tests structure?
• Is the concurrent duties regulation for executive employees (allowing the performance of both exempt and nonexempt duties concurrently) working appropriately or does it need to be modified to avoid sweeping nonexempt employees into the exemption? Alternatively, should there be a limitation on the amount of nonexempt work? To what extent are exempt, lower-level executive employees performing nonexempt work?
• Should certain types of bonus and incentive compensation be included in determining an employee’s salary?

The DOL is also considering whether to add to the regulations examples of additional occupations to provide guidance in administering the white collar exemptions. The DOL feels that examples of how the general executive, administrative, and professional exemption criteria may apply to specific occupations are useful to the regulated community and seeks comments on what specific additional examples of nonexempt and exempt occupations would be most helpful to include.

The DOL is considering the suggestions of employer stakeholders from the computer and information technology sectors to include additional examples of the application of the white collar exemptions to occupational categories in computer-related fields.

The Notice of Proposed Rulemaking was published in the Federal Register on July 6, 2015. The 60-day comment period ends on September 4, 2015. Consider submitting written comments to the DOL either as an individual or as part of an association. This is your chance to actively put forth your views, opinions, and ideas.

Additional Resources

• 2015 Changes to Overtime Regulations Resource Center
• The new FLSA regulations: What changed, what's next for employers
• FLSA Exemption Checklist
• DOL's proposed overtime regulations video: What you need to know