The calendar has flipped from February to March, but there is still nothing from the Department of Labor regarding new regulations governing the Fair Labor Standards Act. Don’t worry, you haven’t missed anything. The DOL missed its February deadline and has not announced any new deadlines just yet. As we have written here, the new regulation is intended to implement President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees. Although the calendar has changed to February, the page where the regulations, or at least a final release date, would be announced has yet to change.
You will recall that last Spring, the DOL originally set a November deadline for the regulations. Its’ Solicitor confirmed back in October that the DOL would miss that deadline and that the regulations would be released in early 2015. In the November release of its Fall 2014 Agency Rule List, the DOL’s “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees” regulation was slated for a February release. February has come and gone, and the regulations are still MIA, not that employers are likely heartbroken about it.
What has the DOL been up to? Last month, it released its final rule extending FMLA leave rights to same-sex couples, as my colleague Jeff Nowak discussed on his FMLA Insights blog. The Department has also been busy with its appeal of a district court’s decision to enjoin its new rules for home health care providers, who were previously exempt from the FLSA’s rules on minimum wage and overtime payments. The decision put both federal and state rules and programs into limbo, thus diverting the DOL’s attention. Because the DOL’s regulation date has yet to change with the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA), it would appear that the DOL has not abandoned hope of releasing the FLSA regulations soon. We’ll keep watching and report back to you as soon as the DOL releases the regulations or any new information.
While you are waiting, you can go back and read what we have been telling you to expect from the new Fair Labor Standards Act regulations, which has not changed over the past year, as I explained in November. We also have documented some of the not-so-subtle lobbying efforts of various Democrats and Democratic-aligned groups.
Remember, too, that even if the DOL releases new regulations today, they will only be proposed changes. The Obama administration would need to complete a number of time-consuming steps before any FLSA rule change could take effect. These steps include a required notice of proposed rulemaking and a public comment period. Then, the DOL would need to hear testimony, consider public comments, and have a final version of the revised regulations approved by the OIRA. Typically, the public comment period will extend at least 30 days. After, the DOL drafts a final regulation that responds to any public comments, OIRA would then conduct a final review, approve the text of the regulation, and publish it in the Federal Register. The period for the Office to review a draft regulation is limited by an Executive Order to 90 days, with the possibility of a single, 30-day extension. While there is no minimum period for review, the average review time in past years has been approximately two months. Therefore, even with an immediate release of proposed rules, the DOL is unlikely to be able to implement a new regulation in its final form before June 2015.