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05.22.19

IFPTE Files Comments on DOL's Overtime Rule for Executive, Administrative and Professional Employees

In comments submitted to the DOL, IFPTE tells the DOL that its proposed overtime rule (the “EAP” rule) because it does not go far enough to protect workers we represent and workers throughout the U.S. economy.

The salary threshold increase in the proposed rule fails to ensure that employees who can pass the current duties test are truly bona fide exempt EAP employees who are supposed to have sufficient executive authority or independent discretion to manage their jobs and their hours. By setting the salary threshold below the 2016 rule - with was invalidated the federal district court in Texas - workers will lose annual earnings of $1.2 billion to $1.6 billion over the first 10 years of implementation.

At $35,308, the salary threshold in the DOL’s proposed rule would cover just 15 percent of full-time salaried workers. Raising the salary threshold to at least the 2016 rule would meaningfully address this issue, create a clear rule that would deter litigation, and
reduce the number of workers who are inappropriately classified as exempt and underpaid. By setting the salary threshold below the 2016 rule, workers will lose annual earnings of $1.2 billion to $1.6 billion over the first 10 years of implementation.

The DOL’s 2016 rule sought to restore the FLSA overtime rule at the 40th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census region ($913 per week or $47,476 annually in 2016) and noted that any salary threshold below the 40th percentile “would require more a rigorous duties test than the current standard duties test in order to effectively distinguish between white collar employees who are overtime protected and those who may be ‘bona fide’ EAP employees.”

While the DOL should revisit its exhaustive analysis performed for the 2016 rule and consider a more restrictive duties test that DOL deemed necessary to address inappropriate classification if the salary threshold falls below the 40th percentile, IFPTE contends the current duties test should be revised regardless of where the salary threshold is. The current duties test is too permissive and allows employers to deny overtime protections to workers who spend most of their time performing non-exempt work. Strengthening the duties test would promote the proper classification of workers who have limited professional or managerial duties and who are not bona fide executives, administrative, or professional employees. The DOL should propose a duties test where bona fide EAP employees spend at least 50 percent of their time exclusively on exempt work.

Read IFPTE's comments on the DOL's proposed rule on Execuitve, Administrative, and ProfessionaloOvertime exemptions

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