The DOL Proposes Rule to Once Again Increase Salary Thresholds for Overtime Exemption
The last two presidential administrations have issued rules to increase the salary threshold for exemption from overtime under the Fair Labor Standards Act. While the Obama-era rule mandating a significant increase was ultimately struck down by a federal court, the Trump-era rule requiring a much smaller increase is now law. The Biden administration joined this trend on August 30, 2023, when the Department of Labor released a proposed rule that would increase the standard salary threshold from $684 per week ($35,568 per year) to $1,059 per week ($55,068 per year). The duties test for exemption will not be affected by this rule. The proposed rule increases the threshold for “highly compensated employees” from $107,432 to $143,988. The rule also proposes automatic increases for the salary thresholds every three years to reflect changes in the average earnings. The DOL believes this rule will extend overtime pay to 3.6 million salaried workers.
There will now be a 60-day public comment period on the proposed rule before the DOL issues a final rule. Once the DOL issues a final rule, it is highly likely that it will face numerous legal challenges, especially since the proposed rule goes further than the Obama-era rule that was struck down by the courts. Although it may be some time before any salary increase is legally mandated under this rule or some similar version of it, employers should monitor this rule’s progress and begin considering any effect it may have on your workforce. We will also be monitoring the rule and issue updates as necessary.
Written By Breanna Young
EEOC Issues Proposed Regulations Relating to the Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (“PWFA”) went into effect on June 27, 2023. The U.S. Equal Employment Opportunity Commission (“EEOC”) has now issued a Notice of Proposed Rulemaking (“NPRM”) to implement the PWFA and to provide guidance to employers. The NPRM is available at
The PWFA, which is administered and enforced by the EEOC, requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. This law builds upon the existing protections against pregnancy discrimination under Title VII, the ADA, and the Pregnancy Discrimination Act. This is the first law that specifically requires reasonable accommodations for routine pregnancy. The EEOC’s proposed rule addresses each element of this requirement. The proposed rule provides examples of reasonable accommodations required by the PWFA, including:
- Frequent breaks;
- Sitting or standing;
- Schedule changes, part-time work, paid and unpaid leave;
- Light duty;
- Making existing facilities accessible or modifying the work environment;
- Job restructuring;
- Temporarily suspending one or more essential function;
- Acquiring or modifying equipment, uniforms, or devices; and
- Adjusting or modifying examinations or policies.
Like under the ADA, “undue hardship” generally means significant difficulty or expense for the operation of the employer. The proposed rule outlines additional factors to be considered when determining whether undue hardship exists for the employer in accommodating an employee’s temporary inability to perform an essential function. These factors include:
- Consideration of the length of time that the employee or applicant will be unable to perform the essential function(s);
- Whether there is work for the employee or applicant to accomplish;
- The nature of the essential function, including its frequency;
- Whether the employer has provided other employees or applicants in similar positions who are unable to perform essential function(s) of their positions with temporary suspensions of those functions and other duties;
- If necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and
- Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
The proposed rule also identifies a limited number of simple modifications that will, in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by an employee due to pregnancy. These modifications in the proposed rule are:
- Allowing an employee to carry water and drink, as needed, in the employee’s work area;
- Allowing an employee additional restroom breaks;
- Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
- Allowing an employee breaks, as needed, to eat and drink.
The NPRM is open for public comment until October 11, 2023. The EEOC will then be required to finalize and issue regulations by December 29, 2023. In the meantime, employers can use this proposed rule as insight into how they should be considering accommodations for pregnant employees. Since the PWFA is already in effect, employers have a legal duty to comply, even before these regulations are finalized. Employers should implement the PWFA by updating their accommodations policy to include known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, as well as their non-retaliation policies. Employers should also educate their supervisors and managers on obligations under the PWFA and the appropriate procedure for responding to accommodation requests. As with accommodation requests under the ADA, PWFA accommodations will require an individualized assessment – no situation will be exactly the same. As always, we are here to help as you navigate the implementation of this law.
Written By: Grace Ann Azar
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