The anticipated proposed rule on overtime has been in a holding pattern while Congress considers leadership nominations to the U.S. Department of Labor (DOL), said Robert Boonin, an attorney with Dykema in Ann Arbor, Mich., at the SHRM Annual Conference & Expo 2023 in Las Vegas.
Speaking June 12 at a concurrent session called "Wage & Hour Compliance: A DOL Update and Ways to Avoid Common Overtime Liability Landmines," Boonin said the nomination of Julie Su to be secretary of labor for the U.S. Department of Labor has met some headwinds on Capitol Hill, and she may not be confirmed by the Senate. He added that a final rule on independent contractors may not be issued until October.
Anticipated Proposed Overtime Rule
In addition to discussing the delay caused by the held-up nomination, Boonin said he thought the DOL may be planning more aggressive changes with the new rule than in its previous revisions, which raised the salary level test to $35,568 annually.
Perhaps the department is contemplating including some provisions in the proposed rule other than a one-time increase in the salary level test, such as taking the controversial step of adding periodic indexed adjustments to the salary level rather than going through rulemaking to raise the salary level. It might also change the duties test, he said.
Even though the proposed rule hasn't come out yet, legal challenges are expected.
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