Co-authored by Adam Vergne and Kevin Young

On Friday, Seyfarth’s Wage & Hour Litigation Practice Group submitted its comments to the Wage and Hour Division’s recent Notice of Proposed Rulemaking. As our readers know, the NPRM signals a potential overhaul to the FLSA’s white-collar exemptions. Seyfarth’s comments offer an insightful response to each aspect of the NPRM. Although not made on behalf of any specific client, the comments are informed by the feedback from, as well as our experience representing, thousands of employers across virtually every major industry. Our team also coordinated roundtables in eight different cities, each led by our experienced wage and hour practitioners and, at some locations, joined by expert economists.

As we have explained before, the NPRM includes specific proposals to increase the exemptions’ minimum salary level to an estimated $50,440 in 2016—more than double the current level. Moreover, WHD proposes to index the salary level to the 40th percentile of weekly earnings for full-time salaried workers, meaning that the salary threshold would increase every year. While WHD surprised many by not including a specific proposal to amend the exemptions’ duties tests, it did pose various duties-related questions that suggest it may consider still-undisclosed changes to those tests as well.

Seyfarth’s comments reflect the business community’s deep concern about WHD’s proposals and chosen course. Contrary to its stated intentions, the rules that WHD proposes, or suggests that it might adopt, would cause confusion among both employers and employees and could generate even more litigation in a wage-hour arena where litigation is already soaring. Further, as our comments explain, WHD’s approach to setting the salary level fails to fully account for, among other things, critical regional and industry variations and considerations unique to part-time employees.

Our comments also relay deep concern about the unusual approach WHD has taken to the exemptions’ duties tests. By presenting only questions to answer, rather than actual proposed regulatory changes, WHD has not provided the regulated community with the ability to meaningfully comment on any proposal. This is especially concerning because the brand of changes that WHD appears to be contemplating could have a massive, adverse impact on employers and employees alike.

These are just a handful of the topics covered more exhaustively in Seyfarth’s comments. The comments reflect the work of experienced wage and hour practitioners and, more importantly, the voices and viewpoints of numerous employers and industries. While WHD is the intended audience, we hope and expect that you will enjoy reading the comments as well.