The U.S. Department of Labor (DOL) recently announced in the spring regulatory agenda that it will issue the proposed overtime rule in August. But regulatory agendas are the agencies' predictions of when rules will be issued and aren't set in stone. The DOL has been announcing the release of a proposed overtime rule as far back as last year.
The anticipated rule has been in a holding pattern while Congress considers leadership nominations to the DOL, said Robert Boonin, an attorney with Dykema in Ann Arbor, Mich., at the SHRM Annual Conference & Expo 2023 (SHRM23) in Las Vegas on June 12.
Boonin added that 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.
It's possible the proposed rule will include increases to the exempt salary threshold based on the consumer price index, said LaKeisha Caton, an attorney with Pryor Cashman in New York City.
"This might be problematic because those who oppose the rule could challenge it on the basis that the exempt salary threshold can only be increased pursuant to the normal rulemaking process, not automatically based on changes in the market," she said.
The DOL might also change the duties test, Boonin noted. For example, it might adopt California's 50 percent rule for white-collar exemptions, meaning that in order to be exempt, more than one-half of an employee's work time must be spent engaged in exempt work.
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