Employment Law Report

Sixty-Day Comment Period Open Regarding the DOL’s Proposed Rule Increasing Salary Requirement for Exempt Employees

By Sharon L. Gold

Today begins the sixty-day period when employers can submit comments about the DOL’s proposed rule increasing the salary requirements for exempt employees. The DOL proposes that the minimum salary requirements be raised from $455 coin stackper week or $23,660 a year to $970 a week or $50,440 a year. In order to qualify for the highly compensated exemption, an employee would have to make $122,148 annually, which is up from $100,000. In addition to comments on the salary increase, the DOL asks for comments on whether nondiscretionary bonuses and incentive pay should be included in the calculation of the minimum increased salary.

The proposed rule did not make any changes to the duties test that is utilized to determine if an employee is exempt (for instance, some thought the proposed rule would require that a certain amount of time be spent in management). However, the DOL did ask for comments on several questions concerning the duties test, including the following:

  1. “What, if any, changes should be made to the duties tests?
  2. 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?
  3. Should the Department look to the State of 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?
  4. Does the single standard duties test for each exemption category appropriately distinguish between exempt and nonexempt employees? Should the Department reconsider our decision to eliminate the long/short duties tests structure?
  5. 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?”

(See NPRM).

The DOL also asks for comments on whether additional specific occupations should be listed within the regulations. Finally, the DOL solicits comments for “the computer and information technology sectors as to what additional occupational titles or categories should be included as examples in the part 541 regulations, along with what duties are typical of such categories and would thus cause them to generally meet or fail to meet the relevant EAP exemption criteria.” (Id.).

If you are interested in submitting comments, they must be made on or before September 4, 2015. Comments can be submitted online, or in writing to Mary Ziegler, Director of the Division of Regulations, Legislation and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S–3502, 200 Constitution Avenue N.W., Washington, DC 20210. Remember that comments are a matter of public record. Information included within comments, including any personal identifiers, will be available for public view.

The Notice of Public Rulemaking is available here.

Sharon L. Gold
Sharon Gold is a member of the Firm’s Litigation & Dispute Resolution Service Team. She concentrates her practice in the area of labor and employment and commercial litigation. Ms. Gold has experience defending employers in a variety of lawsuits, both at the administrative and civil complaint level, including defense of claims brought pursuant to the: FLSA, FMLA, Title VII, 42 U.S.C. § 1981, ERISA litigation, ADA, ADEA, Kentucky Civil Rights Act, Kentucky Wage and Hour Act,... Read More