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Not so fast, DOL! Congress seeks to nullify new proposed overtime updates

March 21, 2016

We reported earlier last week that the U.S. Department of Labor (DOL) has fast-tracked the publication of the proposed revisions to the Fair Labor Standards Act (FLSA) overtime rules. On March 17, 2016, U.S. Congressman Tim Walberg and Senator Lamar Alexander introduced a bill, the Protecting Workplace Advancement and Opportunity Act (S 2707 and HR 4773) (Bill), to “nullify” the proposed rule changes.

Notably, the public and Congress have yet to see the final rules. The Bill’s drafters nonetheless seek to address provisions that opponents suspect will be in the rules. Here are a few highlights of the Bill:

  • Rule Nullified. The proposed rule would “cease to have any force or effect” and any final rule would not be enforceable by the DOL, effective upon the date the Bill becomes law.
  • Duties Test. The Bill would require that any changes to the duties test must be made available for public review and comment before they could become law. While the DOL stated that there may be changes to the duties test, no specific changes were included in the proposed rule. As a result, uncertainty looms over whether changes will be made.
  • No Automatic Increases. The Bill would prohibit the DOL from instituting automatic increases to the salary basis test.
  • Economic Analysis. The Bill would require the DOL to conduct a comprehensive analysis of the impact of the proposed rule on small businesses, nonprofit organizations and public employers.

The Bill faces an uphill battle. Even if Congress is successful in passing the Bill, President Barack Obama will likely veto it. If he does, a two-thirds majority of Congress must override the veto before the end of this term. At this point in time, it is questionable whether such a majority exists.

So, if the Bill will not likely become law, why propose it? Proponents of the Bill likely want an opportunity to have a public vote so that, should the changes have a negative impact, they can point to their attempts to stop the proposed rule from being implemented.

Stay tuned . . .

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