Action Item: In case you’ve been hibernating for the last year or so, get ready: the U.S. Department of Labor (“DOL”) is poised to publish its long-awaited final revisions to the “White Collar Exemption” regulations under the Fair Labor Standards Act. If you have been waiting to see what happens without any advance preparation or evaluation of the potential impact, it’s definitely late—but not too late! Organize your internal team, consider the anticipated new rule, identify the zone of impact, and plan your strategy.
The worst kept secret in American legal circles is that the DOL must get these new regulations published in the next few weeks in order to best avoid a challenge to them under the Congressional Review Act. So, that means prognosticators are spending every minute of every day attempting to predict the exact date the final rule will be published. The reality is the exact date is irrelevant—don’t get preoccupied with the timing. They are coming any day now—maybe even tomorrow.
Most importantly right now, identify all potentially problematic exempt job classifications and weigh the variety of options that will be available to you once the new regulations are final. Once published, your timeline for compliance is likely to be short, as little as 60 days or possibly 120 days. For those holding exempt job classifications in the projected impact zone—that is, currently exempt employees who earn a salary between $23,660 and approximately $50,000—it will be critical for your evaluation of options to “know” how many hours such employees actually work on a weekly basis, though you likely currently have no record of such hours worked. To be prepared, you should immediately engage in an effort to track the actual work hours of those employees, so that you develop a representative sampling to use in determining whether and how to reclassify any of the affected job classifications. When implementing a tracking method, please remember to craft a message that will not inordinately change their work habits and communicate it to the affected employees.
