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The US Department of Labor’s Wage and Hour division announced last week that it would soon begin a six-month pilot of the Payroll Audit Independent Determination (PAID) program, which will give employers an avenue for resolving potential overtime and minimum wage violations under the Fair Labor Standards Act by self-auditing and voluntarily reporting these violations to the division:
This program will ensure that more employees receive back wages they are owed—faster. Employees will receive 100% of the back wages paid, without having to pay any litigation expenses or attorneys’ fees. The program requires employers to review WHD’s compliance assistance materials, carefully audit their pay practices, and agree to correct the pay practices at issue going forward. These requirements improve the employers’ compliance with their minimum wage and overtime obligations and further protect the rights of workers. …
It is purely the employee’s choice whether to accept the payment of back wages due, and employers are prohibited from retaliating against the employee for his or her choice. If the employee chooses to not accept the payment, the employee will not release any private right of action. Additionally, if the employee chooses to accept the payment, the employee will not grant a broad release of all potential claims under the FLSA. Rather, the releases are tailored to only the identified violations and time period for which the employer is paying the back wages.
Wage and hour disputes already being litigated or investigated by the Labor Department will not be eligible for resolution through the PAID program. Employers also cannot use the program to repeatedly resolve the same violation. The six-month pilot is expected to launch in April; once it concludes, the department will assess its effectiveness and decide whether to maintain it going forward.
Like some other East Asian economies, South Korea has long been known for a highly demanding work culture that rewards long hours and measures employees’ commitment by how much overtime they are willing to work. The country is one of the hardest-working in the OECD, with South Koreans working an average of 2,069 hours in 2016, compared to 1,783 hours in the US and just 1,363 hours in Germany. That may start to change in the coming years thanks to a bill approved by the National Assembly’s Environment and Labor Committee last Tuesday, which cuts the maximum statutory working hours from 68 hours a week to 52, the Korea Times reported:
Slashing working hours was among the main election pledges of President Moon Jae-in, which he said will improve quality of life as well as help create jobs. However, fewer working hours means higher labor costs for businesses. According to an estimate by the Korea Economic Research Institute, businesses will pay an additional 12.1 trillion won annually to maintain current production while cutting the working hours. This includes wages paid to additional workers hired to cover the hours lost, as well as their training costs.
Pennsylvania Governor Tom Wolf announced earlier this month that he had directed labor regulators to devise a plan to clarify the duties test in the state’s overtime regulations and raise the salary threshold at which employees become exempt from overtime, the Pittsburgh Post-Gazette’s Daniel Moore reported:
The proposal, which expands overtime in phases over three years, would raise the amount that certain salaried employees can earn and still qualify for overtime pay. Beginning Jan. 1, 2020, the state would raise the salary limit to $31,720, or $610 per week. The threshold will increase to $39,832 on Jan. 1, 2021, followed by $47,892 in 2022, which the Wolf administration estimates will extend overtime eligibility to up to 460,000 workers.
But the proposal’s future could hinge on the outcome of the gubernatorial election, as Gov. Wolf faces multiple Republican challengers in a re-election battle this year. The governor has unsuccessfully pressed the legislature to pass an increase in the minimum wage, which sits at $7.25 an hour, the lowest allowed by federal standards.
The Pennsylvania Department of Labor & Industry is expected to publish an initial proposal for public comments in March. Wolf’s proposal is similar to the new overtime rule the Obama administration attempted to enact in 2016, which was set to abruptly raise the overtime salary threshold from $23,660 to $47,476 until a federal judge invalidated it last August.
The US Labor Department will appeal a ruling handed down by a federal judge in Texas earlier this year, striking down the controversial new overtime rule put in place by the previous administration, the Washington Examiner reports:
The department will ask that the district court’s August ruling by stayed while it establishes a new overtime rule. The Trump administration is still expected to significantly scale back the rule.
Labor Secretary Alexander Acosta has repeatedly said that the Obama administration went too far when it expanded the rule, which extended overtime eligibility to an estimated 4 million more workers, but also that the rule itself was nevertheless in need of updating. He has suggested that a more moderate expansion would be appropriate.
A drawn-out court process could extend the duration of the uncertainty employers are currently facing as to the future of this regulation. Labor Secretary Alexander Acosta, appointed by President Donald Trump in March, has indeed been a critic of the Obama administration’s rule, which would have more than doubled the overtime salary threshold from $23,660 to $47,476. Before the judgment handed down in August, the Trump Administration signaled that it planned to rewrite the rule and Acosta’s department began the process of doing so with a solicitation of public comments in July.
The new overtime rule proposed by the Obama administration last year, which would have increased the overtime salary threshold from $23,660 to $47,476, currently looks very unlikely to come into effect in its original form. A federal judge in Texas struck the rule down in September, finding that the Labor Department had erred in setting the new rules for overtime eligibility based on salaries alone and not job descriptions. Meanwhile, the department’s new leadership under Labor Secretary Alexander Acosta has signaled that it would rewrite the rule to make it less burdensome to employers, issuing a request for comments in July as it began a process of reviewing the regulation.
Nonetheless, policymakers, including Acosta himself, agree that the overtime threshold is overdue for some kind of increase, and most observers believe the Labor Department is likely to adopt a new rule that raises the threshold less dramatically, either through incremental increases or different salary tests depending on location, company size, or type of role.
Employers who had hoped to rest easy after the Obama-era rule was held up in court still face an uncertain change in regulation in the coming year, including the possibility that Acosta chooses to appeal the ruling against the 2016 rule. Erin Mulvaney discusses that uncertainty at the National Law Journal:
“Employers have been left in limbo,” said Lori Brown, president and chief operating officer of Compliance HR at a webinar this week that highlighted issues about the overtime rule. “It’s an ever-changing compliance dilemma.” …
After a year of controversy, litigation, and delays, the new overtime rule created by the US Department of Labor under the Obama administration last year has now been thoroughly defeated. US District Judge Amos Mazzant, who issued a preliminary injunction last November blocking the rule from coming into effect as scheduled in December 2016, has issued a final ruling and struck the rule down entirely, finding that the Labor Department erred in setting the new rules for overtime eligibility based on salaries alone and not job descriptions, The Hill reported late Thursday:
The judge’s ruling was celebrated by industry groups, including the Restaurant Law Center, which represents the restaurant industry. In a statement to The Hill, the group said the Obama administration “overstepped its authority.”
“The Department of Labor under the previous administration overstepped its authority in making changes to the federal overtime rule. Today’s decision to invalidate the rule demonstrates the negative impacts these regulations would have had on businesses and their workers. We will continue to work with [the Department of Labor] on behalf of the restaurant industry to ensure workable changes to the overtime rule are enacted,” the group said in a statement.
To some extent, Mazzant’s ruling is redundant, as the Trump administration had already announced that it was rewriting the rule and issued a request for public comments as a first step toward amending it. The decision will put some constraints on that rewrite, employment lawyer Eric B. Meyer tells HR Dive, but won’t prevent the Labor Department from updating the overtime salary threshold in the more restrained manner its current leadership envisions:
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The US Department of Labor has begun the process of revising or reversing the controversial new overtime rule enacted by the Obama administration last year, which would have raised the salary threshold at which employees are exempt from overtime pay from $23,660 to $47,476, but was held up in court before coming into effect. The Trump administration indicated earlier this month that it was planning to rewrite the rule, and on Tuesday, the Labor Department issued a request for information, soliciting public comments on the rule as a first step toward amending it, Reuters reported.
Specifically, the department is asking for input on whether and how to update the current salary threshold, or whether to eliminate the threshold entirely and base overtime eligibility solely on the “duties test.” It also wants to know how last year’s rule change and the injunction blocking it affected employers, many of whom raised salaries in anticipation of the rule and in some cases intend to keep those raises in place regardless of what happens in Washington. At TLNT, Seyfarth Shaw attorney Alex Passantino, a former acting administrator of the DOL’s Wage and Hour Division, provides a detailed overview of the questions included in the RFI, such as:
- Should the 2004 salary test be updated based on inflation? If so, which measure of inflation?
- Would duties test changes be necessary if the increase was based on inflation?
- Should there be multiple salary levels in the regulations? Would differences in salary level based on employer size or locality be useful and/or viable?
- Should the Department return to its pre-2004 standard of having different salary levels based on whether the exemption asserted was the executive/administrative vs. the professional?
The question of whether to differentiate salary thresholds by local cost of living is potentially the key innovation in the Trump administration’s proposed overhaul of the rule. Talking to SHRM’s Allen Smith, Passantino and other employment attorneys discuss how this might work—or indeed, whether it would work at all: