Authored by Alex Passantino

Last week proved to be a busy one in the world of wage and hour policy. First, WHD sent its final rule package to OMB for review. Then, Secretary of Labor Tom Perez testified before three Congressional committees , where he was asked about many DOL initiatives, including the overtime rule, joint employment, and independent contractors. During one of these hearings, Secretary Perez suggested that OMB’s review of the final overtime rule would be completed in the next 45-90 days. The rule would be issued shortly thereafter.

Unless Congress has something to do with it. Both the House and the Senate introduced the Protecting Workplace Advancement and Opportunity Act (HR 4773/S.2707). The Protecting Workplace Advancement and Opportunity Act would:

  • Prevent DOL from implementing the rule as currently proposed.
  • Require DOL to fully and accurately consider the following before issuing a new rule:
    • the economic impact on small businesses, nonprofits, institutions of higher education, and other affected parties;
    • the management and human resources costs, such as costs associated with reclassifying employees; and
    • the impact on employment, workplace flexibility, employee benefits structures for exempt and nonexempt employees, career advancement opportunities, new business formation, and business termination.
  • Require the comment period for any future proposed rule to be at least 120 days and the effective date of any future rule to be at least 1 year after the rule’s publication in the Federal Register.
  • Make clear that automatic increases are not allowed under current law.
  • Prohibit changes to the duties tests where proposed regulatory text was not made available for public review and comment.

The Protecting Workplace Advancement and Opportunity Act was introduced by two sponsors in the House and two in the Senate. Multiple co-sponsors are expected to sign on to the bill in the coming weeks. It also is expected that the overtime rulemaking will be the subject of discussions during the upcoming appropriations process.

Ultimately, of course, the Protecting Workplace Advancement and Opportunity Act or any appropriations rider must be approved by both the House and the Senate, and then must be signed by the President before it can become law. Given election year politics and the possibility of a Presidential veto, successful legislative action on the overtime rule will be difficult. We’ll keep you posted as the legislative process progresses.