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Proposed New Overtime Rule Headed to Executive Branch for Review

Our friends at Bloomberg Law are reporting that the U.S. Department of Labor (DOL) has sent a proposed new federal overtime rule to the White House Office of Information and Regulatory Affairs (OIRA). OIRA is part of the Office of Management and Budget (OMB), which has the responsibility to coordinate interagency Executive Branch review of significant regulations before publication. This is to ensure agency compliance with the principles in Executive Order 12866, which include incorporating public comment, considering alternatives to the rulemaking, and analyzing both costs and benefits.

The period for OIRA review is generally limited to 90 days, but it may be extended 30 days by the OBM Director and indefinitely by the head of the rulemaking agency (here, the DOL). OIRA has the authority to return the rule to the DOL for reconsideration, including if it does not appear consistent with the President’s policies and priorities.

As you may recall from our earlier posts, the DOL pressed the pause button on revisions to the federal overtime rule after President Trump took office in January 2017. In public comments, however, Labor Secretary Alexander Acosta has repeatedly indicated that he favors some increase in the minimum salary threshold for exemption, which was last raised in 2004. In its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, published last October, the Trump Administration formally announced its intention to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 “to determine the appropriate salary level for exemption of executive, administrative and professional employees.”

Stay tuned for further developments on the proposed new rule.

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About this Author

Allan Bloom, Litigation Attorney, Proskauer Rose Law Firm
Partner

Allan Bloom is an experienced trial lawyer who represents management in a broad range of employment and labor law matters. He has successfully defended a number of the world’s leading financial services, investment management, technology, consumer products, telecommunications, publishing, insurance, construction, and lodging companies, as well as global law firms and cultural institutions, against claims for unpaid wages, employment discrimination, breach of contract, and wrongful discharge, both at the trial and appellate court levels.

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