More “Leaks” from D.C.? New DOL Salary Threshold = $35,000?

Jason E. Reisman

As I previously reported in mid-January (see my blog post here), the U.S. Department of Labor’s (“DOL”) long-awaited, updated proposal setting a new salary threshold for the Fair Labor Standards Act’s (“FLSA”) white collar exemptions finally made its way to the White House’s Office of Management and Budget (“OMB”) for review. That means the public should see it within 90 days or so.

Now, according to my D.C. sources (BR’s “deepthroat”), here’s the latest:

• Bet the house (or, maybe something big, but not your house) on the new salary threshold being $35,000 (almost a 50 percent increase over the current $23,660);
• It will be a uniform threshold, rather than one with regional differences;
• It will not be subject to automatic periodic adjustments (instead, word has it that the Secretary of Labor will periodically—about every three years—evaluate whether the salary threshold will be revised through rulemaking).

Get excited! The proposed rule is expected to escape review by the OMB and be issued for public comment any minute. And, rest assured, there will be a great deal of public commenting … and likely legal challenges from someone once the rule is final. So, stay tuned to see how credible BR’s deepthroat is as a source.

Note: The Department of Labor has been quite busy, despite still not having a Senate-confirmed leader of the Wage & Hour Division:

• First, as previously mentioned here, the DOL has another proposed rule being reviewed at the White House, which will provide updates on the concept of the “regular rate” and what is and is not included in it.
• And, at the end of last week, the DOL sent one more major proposal to the White House OMB, this one a new rule designed to limit joint employer liability. No details have been released at this point, but it too should be arriving for public comment soon. Remember—this DOL joint employer rule is coming at the same time that the National Labor Relations Board is preparing to issue its own rule on that topic, which is designed to limit shared liability for collective bargaining and unfair labor practices.