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DOL Sets 2016 Deadlines for Persuader and Overtime Rules

On Friday, the Department of Labor (DOL) issued its semi-annual regulatory agenda, which provides updates on the agency’s rulemaking efforts including OSHA rule changes and rules impacting federal contractors and subcontractors. The most notable items in the agenda, though, are new deadlines for the DOL’s final rule revising the FLSA’s “white collar” overtime exemptions for executive, administrative, and professional employees, and a new release date for the controversial “persuader” rule.

        • As previously noted by Nemeth Law, the DOL’s Solicitor of Labor recently stated that the final overtime rule likely would not be released until late 2016. The DOL’s agency rule list now provides a more definite deadline of July 2016. It is anticipated that the rule will nearly double the salary basis requirement for these exemptions. Employers can anticipate about a two-month compliance period before the rules are effective after the final rule is released, so the timeframe for implementation of the rule hasn’t necessarily changed. That being said, if employers were not already preparing for the change, they should consider doing so now.

        • The agenda also provides a new issue date - March 2016 - for its revised “persuader” rule, which will significantly broaden reporting requirements for employers that hire consultants or contractors (including attorneys) to persuade employees concerning whether to exercise, or how to exercise, their rights to organize or bargain collectively under the National Labor Relations Act (NLRA). The rule also narrows the advice exemption in the current rule, which has often been applied to privileged attorney-client communications.

        • The DOL also indicates that, by February 2016, it will issue a request for information regarding employee “use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace, as well as information regarding last minute scheduling practices being utilized by some employers that are made possible in large part by employees’ use of these devices.” This is a possible indicator that the DOL is looking into rules limiting the use of such devices by non-exempt employees or promulgating new overtime regulations regarding this issue.

It’s important to note that the deadlines and time periods provided in the agenda are sometimes missed or pushed back. Nonetheless, it does provide an indicator of the priority that agencies such as the DOL place on certain rules and regulations. Employers should keep these deadlines in mind and keep checking the Nemeth Law Employment Blog for updates.

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