Jottings By An Employer's Lawyer

Friday, March 28, 2003

More On Wage and Hour Exemption Changes

Updating yesterday's note, the DOL has posted more information on the changes to the regulations on white collar employees, which is one of the principal factors in determining who is entitled to overtime and who is not. In their latest postings are an overview, a comparison of the new test and old test, a pie chart of the demographics of those who will now be eligible for overtime, and the DOL's news release about the changes. The full regulations (about 150 pages) will not published in the Federal Register until Monday. Just from a quick look at the comparison, it does not appear that a couple of issues that employers had hoped would be addressed have been dealt with. One is under the administrative regulation job duty test which appears to maintain the requirement that the job "be related to the management or general business operations of the employer or the employer’s customers." That test has been used by some courts to disallow exemptions because the employers were engaged in "production" type work, rather than business support positions. The other is that the outside sales exemption, still requires that the employee be "customarily and regularly engaged away from the employer’s place or places of business." Employers have long sought an 'inside' sales exemption as well. Although it may be elsewhere in the new regulations, it is not being featured in the material released so far.

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