Department of Labor to Hold “Listening Sessions” on FLSA

Back in 2016, before AAN members worried about newsprint tariffs, we were all talking about changes to the Department of Labor Wage and Hour Divisions proposed changes to the Fair Labor Standards Act.  These were actually enacted by the Obama Administration in 2016.  Specifically, the changes affected the “salary level” test, one of three tests for determining whether an employee is exempt from the requirement to be paid overtime for work performed in excess of 40 hours in a week (the other two are the “salary basis” test and the “duties” test).

The change would have significantly reduced the number of employees in all industries – and certainly in the journalism world – considered exempt from overtime pay.  That’s because the minimum threshold for qualifying as an exempt employee under the salary level test would have increased from $23,660/yr to $47,476 per year. AAN members were particularly concerned because the vast majority of reporters fall within these two numbers and would be converted from exempt to non-exempt, a change that is particularly problematic when it comes to reporters generally are not confined to a 40 hour work week and can’t simply stop working if that ceiling is reached before a story is completed.

That’s why AAN members celebrated when the Trump Administration blocked the changes before they took effect in 2017.  This came as no surprise given the pro-business stance emanating from this Administration.

It may come as a surprise – and not a welcome one – to find out that changes may still be afoot.  After publishing a “Request for Information”  regarding the definition of Executive, Administrative, Professional, Outside Sales and Computer Employees, the Wage and Hour Division announced on August 28, 2018 that is holding a series of “listening sessions” around the country in coming weeks addressing the following topics relating to the salary level test:

  1. What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply? Why?
  2. What benefits and costs to employees and employers might accompany an increased salary level? How would an increased salary level affect real wages (e.g., increasing overtime pay for employees whose current salaries are below a new level but above the current threshold)? Could an increased salary level reduce litigation costs by reducing the number of employees whose exemption status is unclear? Could this additional certainty produce other benefits for employees and employers?
  3. What is the best methodology to determine an updated salary level? Should the update derive from wage growth, cost-of-living increases, actual wages paid to employees, or some other measure?
  4. Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated  employees? If so, how should these  updates be made? How frequently should updates occur? What benefits, if any, could result from more frequent updates?

The actual dates, times and locations are:

September 7, 2018, Atlanta, Georgia, 10 a.m.–12 p.m.

September 11, 2018, Seattle, Washington, 10 a.m.–12 p.m.

September 13, 2018, Kansas City, Missouri, 10 a.m.–12 p.m.

September 14, 2018, Denver, Colorado, 10 a.m.–12 p.m.

September 24, 2018, Providence, Rhode Island, 10 a.m.–12 p.m.

Members of the public are welcome to attend and provide their views on these topics but must register via this link.

Please do not hesitate to contact AAN Legal Counsel Kevin M. Goldberg at 703-812-0462 or for more information.