Now that the Department of Labor has gone back to the drawing board with the new regulation that set a $47,476 threshold salary for white collar employees to be exempt from overtime, it would like to hear from you.

The DOL is asking stakeholders – including business owners – to chime in on what that threshold should be and what factors should be considered in setting it. The new salary regulation, which more than doubled the threshold salary for exempt professional, administrative and executive workers, was supposed to take effect December 1, 2016. However, last November a Texas court enjoined the rule from taking effect and the DOL appealed. In the appellate brief filed this summer on behalf of the DOL – now led by Trump appointee Alexander Acosta – the agency asked the appellate court not to address the validity of the specific salary level set by the 2016 final rule. Instead it asked the court to rule only on whether the DOL has authority to set a salary level, and stated its intent to take the salary level determination back through the rule-making process.

The DOL has now started that process, issuing a Request for Information (linked here) seeking input on 11 specific questions related to the salary level, including what methodology should be used to set it and whether there should be more than one; whether a duties test alone could determine exempt status; whether there should be a mechanism for automatically updating the salary level and if so, what should it be; whether non-discretionary bonuses and incentive payments should be included to satisfy a portion of the salary level; what the test should be for highly compensated employees; and to what extent employers made changes in anticipation of the regulation that was to take effect last December.

Comments must be submitted by September 25, 2017, and can be submitted via the link in the RFI. Comments can also be submitted at:

Akerman will continue to follow the progress of the salary level rule-making process and keep our readers updated.