Department of Labor Projects Overtime Rulemaking to Begin in May 2023

The Department of Labor (DOL) has updated the projected date for rulemaking to commence on the Overtime (OT) regulation. The new date is May 2023 according to the Biden Administration’s Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions.

HR Drive, “DOL Plans May Release for New Overtime Threshold,” January 6, 2023

TechServe Alliance’s Government Affairs Team has followed developments on possible OT since spring 2022. During spring/summer 2022, thee DOL Wage and Hour Division (WHD) conducted a series of listening sessions to hear from stakeholders about anticipated OT regulations. There were separate listening sessions for employees and employers, which were organized by geographic area.

As background, in 2019 TechServe CEO Mark Roberts’s submitted comments on the then-pending proposed rule that addressed the computer professional exemption under the FLSA and levels of discretionary bonuses that should be included for the standard salary level test for non-computer professional staff, including recruiters. In addition, TechServe supported this approach of going through this public process for adjusting salary levels instead of the alternative linking increases to economic indicators. The Final Rule, effective January 1, 2020, was limited to raising the salary level and setting the discretionary bonus levels; the Final Rule did not address the computer professional exemption.

In addition to the DOL listening sessions, on March 25, 2022, the Small Business Administration (SBA) Office of Advocacy held a nationwide call-in for small businesses with concerns about potential changes to the OT Regulation. The TechServe Government Affairs Team participated in this session.

Small business and non-profit participants in the March 25 listening session were unified in asking for a delay in the effective date of any adjusted salary levels in new regulations. Non-profits and for-profit businesses have budgets that would need to be adjusted and fixed-price contracts or grants that would not immediately support compensation increases. We have heard the same concerns from TechServe Alliance members when states enact mandatory leave, overtime, or other changes—many contracts with a slim profit margin may not support compensation increases.

TechServe would like to hear from members so we are ready to convey information to SBA regarding our small business members’ concerns and draft our own comments. Below are some of the past questions asked by SBA.

  • Whether the salary level above which the exemptions for bona fide executive, administrative, or professional employees should be raised, and whether there is an appropriate level for all businesses;
  • The costs of increasing the salary level to small employers, such as increasing payroll and management costs;
  • Possible regulatory alternatives that would minimize the compliance costs for small entities while achieving the agency’s regulatory goals;
  • The best methodology for updating the salary level, and the appropriate frequency of updates;
  • Whether other changes to overtime regulations are warranted.”

TechServe’s Government Affairs Team will continue to monitor the status of all projected regulations and TechServe will submit comments as appropriate. Please contact the TechServe Governmental Affairs Team with your company’s concerns or questions.