8/21/15- Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Proposed Rule

August 20, 2015

VIA E-MAIL

The Honorable Thomas E. Perez
Secretary, Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210

The Honorable Dr. David Weil
Administrator, Wage and Hour Division
Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210

Re: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Proposed Rule
 

Dear Secretary Perez and Administrator Weil:

The Office of Advocacy of the U.S. Small Business Administration respectfully requests that the Department of Labor (DOL) extend by 90 days the comment period for this proposed rule, which amends the regulations under the Fair Labor Standards Act (FLSA) governing the “white collar” exemption from overtime pay for executive, administrative and professional employees. [1]   The rule implements a March 2014 Presidential Memorandum directing DOL to modernize and streamline existing overtime regulations.[2]  In the proposed rule, DOL would change the salary threshold for employees who are eligible to receive overtime pay, from $23,660 to $50,440.[3]  This salary threshold will also be updated every year in the Federal Register.

The Office of Advocacy

Congress established Advocacy under Pub. L. 94-305 to represent the views of small entities before Federal agencies and Congress.  Advocacy is an independent office within the U.S. Small Business Administration (SBA); as such the views expressed by Advocacy do not necessarily reflect the views of the SBA or the Administration. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), gives small entities a voice in the Federal rulemaking process. For all rules that are expected to have a significant economic impact on a substantial number of small entities, Federal agencies are required by the RFA to assess the impact of the proposed rule on small business and to consider less burdensome alternatives.

The Small Business Jobs Act of 2010 requires agencies to give every appropriate consideration to comments provided by Advocacy.   The agency must include, in any explanation or discussion accompanying the final rule’s publication in the Federal Register, the agency’s response to these written comments submitted by Advocacy on the proposed rule, unless the agency certifies that the public interest is not served by doing so.

Request for an Extension of the Comment Period

Since the publication of the proposed rule, Advocacy has held Small Business Roundtables attended by DOL staff in Louisville, Kentucky, Washington, D.C., and New Orleans, Louisiana.  At each of these events, small businesses and their representatives have expressed concern about the length of the public comment period provided in the proposed rule.   In its Initial Regulatory Flexibility Analysis, DOL states that this rule will have a significant economic impact on a substantial number of small businesses.[4]  Small businesses and their representatives have told Advocacy that they need more time to get feedback due to the large number of small businesses affected by this rulemaking.  DOL estimates that 211,000 small establishments and their estimated 1.8 million workers will be affected by this rule.[5]  Advocacy is concerned that it will be difficult for small businesses to provide enough data or meaningful comments within the 60 days provided in this rulemaking. 

Given these issues and the significant public interest in the outcome of this rule, Advocacy respectfully requests that DOL extend the public comment period for at least another 90 days.  For additional information or assistance please contact me or Janis Reyes at (202) 619-0312 or Janis.Reyes@sba.gov.                             

Sincerely,
 

Claudia Rodgers
Acting Chief Counsel for Advocacy

 

Janis C. Reyes
Assistant Chief Counsel

Copy to:          The Honorable Howard Shelanski, Administrator, Office of Information and  Regulatory Affairs, Office of Management and Budget

 

[1] Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Proposed Rule, Department of Labor, Wage and Hour Division, 80 Fed. Reg. 38516  (July 6, 2015).  Comments on this proposed rule are due to DOL on September 4, 2015. 

[2] Presidential Memorandum, Updating and Modernizing Overtime Regulations (March 13, 2014).

[3] 80 Fed. Reg. at 38516. 

[4] 80 Fed. Reg. at 38602.  (July 6, 2015).

[5] Id. at 38604.