The Department of Labor (DOL) recently decided to appeal a ruling that effectively ended changes to the white collar exemption.
 
But DOL likely will release a revised rule raising minimum salary requirements and then drop the appeal, says Angelo Spinola, attorney, shareholder and member of Littler Mendelson P.C.’s Wage & Hour, Healthcare and International Law Practice Group.
 
The revised rule likely will be released sometime after the confirmation of a new administrator of Labor’s wage and hour division, Spinola adds.
Changes to the Fair Labor Standards Act (FLSA) would have doubled the minimum salary requirements for overtime exemptions to $47,476, or $913 a week.
 
In August, however, a U.S. District Court in Texas concluded the DOL had set the salary threshold so high that it essentially eliminated the criteria of job duties in determining overtime exemption (PDI 10/17). At that time the judge determined this was something the DOL doesn’t have authority to do.
 
The judge’s ruling remained in place as of early December.
 
In late October, the DOL appealed that ruling to the Fifth Circuit.
 
This was likely a precautionary move in case its next attempt to raise the minimum salary requirements is contested, Spinola says. A week after filing the appeal, the DOL moved for a stay as it prepares the proposed rule.
 
The planned rule likely will include a change in the salary level test, but not one as high as previously proposed, Spinola explained at the Private Duty National Conference & Expo in Las Vegas in November.
 
It’s likely the DOL will try to raise the minimum salary requirements to somewhere in the low to mid $30,000s, Spinola says.