With the holidays now over and everyone settling back into our regular work routines, some predictions on labor and employment law developments for 2018 might be helpful. Overall, federal agencies are expected to continue last year’s trend of taking more employer-friendly positions under the current Administration. In addition to that general theme, however, here are five specific “predictions” for what employers will likely see in 2018.
Prediction 1: We’ll Get (A Lot of) New Opinion Letters from the Department of Labor.
For years the U.S. Department of Labor’s (DOL) Opinion Letters were a helpful source of information for employers as they answered questions received from members of the community (primarily on wage and hour issues). For example, if an employer or other entity had a question about how a particular wage and hour regulation applied to its employees and an answer wasn’t clear from the case law or administrative decisions, the employer could send in its question and DOL officials would issue an Opinion Letter offering guidance.
While the Opinion Letters functioned as the DOL’s official, written opinion on how a specific law applied to a given situation, they weren’t binding authority on the DOL or any courts. But they were certainly helpful for employers when there was no other guidance (or differing opinions) available on a sticky issue. Courts also found the letters helpful and they were (and still are) cited to support reasoning offered in judicial decisions.
In 2010, however, the DOL stopped issuing Opinion Letters. Instead it started issuing more general “Administrator Interpretations” which were intended to provide general interpretations of certain laws applied to a specific type of employee or industry. Notably, the DOL only issued 11 Administrator Interpretations between 2010 and 2016. Opinion Letters were issued with much greater frequency, sometimes with dozens being issued in a single year.
Now, however, the DOL has reinstated the issuance of Opinion Letters. “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Labor Secretary Alexander Acosta. The DOL “is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”
So, it seems probable that the DOL will issue many Opinion Letters in 2018 on a variety of topics. To date, the DOL has already issued 17 Opinion Letters in 2018 on the FLSA. The Department’s Opinion Letters can be found at https://www.dol.gov/whd/opinion/flsa.htm. Keep an eye on the site for plenty more this year.
Prediction 2: We’ll See A(nother) New Overtime Rule.
According to the DOL’s regulatory agenda (which you can see here), a new overtime rule will likely be issued this coming October. Based on comments from Labor Secretary Acosta, it seems like a good bet that the new rule will raise the exempt salary threshold for white-collar workers above the current $23,660 minimum annual salary threshold, though almost certainly not as high as was proposed under the Obama Administration’s ill-fated 2016 rule (which more than doubled the annual minimum to $47,476).
In addition to raising the minimum exempt annual salary level, the new rule may again contain a provision allowing for automatic adjustments so that the numbers keep pace with inflation (as the 2016 rule did as well). Inclusion of such a provision is far from certain, however, because there is some debate as to whether the DOL has the authority to implement such a feature under the language of the FLSA. Assuming such a provision is included, this could cause some problems for employers as it may require them to implement pay raises at times that do not coincide with employers’ fiscal years or follow performance evaluations.
Employers should begin planning now for a possible increase to the minimum exempt salary level. Speculation is that the new threshold will be in the $30,000 to $35,000 range. Planning and considering options and impacts now could be smart business strategy.