May 12, 2016

Plaintiffs' attorneys say they expect some employers to botch their response to the Labor Department's imminent overtime rule, so they plan to do expansive employee outreach.

“Once the regulation's done, that’s only the beginning,” Michael Hancock, of counsel at Cohen Milstein Sellers & Toll PLLC in Washington, told Bloomberg BNA. “Then it's really up to all of the players in this to make sure that everybody understands what the changes are and what impact they have on individual workers.”

The DOL's Wage and Hour Division could finalize in the coming days revisions to the Fair Labor Standards Act regulations that would make more workers eligible for overtime pay. The controversial rule is now under final review at the White House Office of Management and Budget (50 DLR A-1, 3/15/16).

At present, workers who earn more than $23,660 per year are exempt from overtime if they also perform certain types of job duties. The final version of the 2015 proposal (RIN:1235-AA11) (125 DLR AA-1, 6/30/15) will likely lift the salary threshold of that white collar overtime exemption to about $47,000 and index it to inflation each subsequent year (82 DLR A-12, 4/28/16).

The substantial boost to the salary threshold would make millions of employees eligible for time-and-a-half when they work more than 40 hours a week, the DOL has estimated. But plaintiffs' attorneys are concerned that employees won't see the regulation's intended benefits unless they know it exists.

As is, they see outreach on the rule as a chance to correct a misconception about the FLSA's existing overtime provisions. “There is a common misunderstanding, particularly among employees, that if I’m paid a salary, I’m not entitled to overtime, period,” Hancock said.

This article originally appeared in Bloomberg BNA.