Authored by Alex Passantino

During his Wednesday hearing before a House Appropriations Subcommittee, in which he addressed the Trump Administration’s proposed budget for DOL, Secretary Alexander Acosta informed the committee that the Department planned to issue a Request for Information (RFI) regarding the currently enjoined overtime rules. The anticipated timetable is 2-3 weeks, but it is unclear whether that represents the timetable before the RFI is submitted to the Office of Management and Budget for review and approval or actual publication.

An RFI is a “pre-rulemaking” procedure during which an administrative agency, such as DOL, asks the regulated community for input on a topic or topics. For example, in 2006, the Wage and Hour Division published an RFI on the Family and Medical Leave Act. The results of the employer and employee responses were published in a report in 2007. The responses also were used to inform the Department’s proposed regulation in 2008, which became effective in 2009.

An RFI on the overtime rule likely would ask questions about the economic (or anticipated) impact of the Department’s increase to the minimum salary level required for exemption. Although it undoubtedly will solicit input from all affected employers and employees, it may ask specific questions about the rule’s impact on not-for profits, state and local governments, and small businesses (or at least the impact it was expected to have). The responses to the Department’s RFI will provide it with real-world data points regarding the actual impact of the rule, which will allow it to better determine how to proceed—in the pending litigation as well as in any rulemaking efforts.

It will, therefore, be critical for employer voices to be heard. We will provide additional information on the RFI—including how best to respond—as it becomes available.