Overtime Rule May Be Coming Sooner Than Expected

Despite tagging summer 2016 as the publication date for its revised white collar overtime rule, the Department of Labor (DOL) may now rush the rule into effect before May 16, which it learned is the final deadline that guarantees the next administration cannot reverse the rule. In a recent interview, DOL Secretary Thomas Perez said he was "confident we’ll get a final rule out by spring 2016.” The rush to publication is to thwart use of a little-known mechanism by which rules issued after this May 16 can be reviewed and reversed by the next Congress and president. The mechanism was detailed to the DOL by the Congressional Research Service, a wing of the Library of Congress, in its report, “Agency Final Rules Submitted After May 16, 2016, May Be Subject to Disapproval in 2017 Under the Congressional Review Act.” The report states, in part:

The Congressional Review Act (5 U.S.C. §§801-808), enacted as part of the 104th Congress's (1995-1996) "Contract with America," established a special parliamentary mechanism whereby Congress can disapprove a final rule promulgated by a federal agency. While Congress has considered several CRA joint resolutions of disapproval since 1996, the CRA mechanism has successfully overturned only one agency final rule: a 2000 Occupational Safety and Health Administration (OSHA) rule related to workplace ergonomics standards.

The act gives Congress 60 session days to review any final rule. If there aren't enough session days left in the legislative calendar, then the next Congress gets a fresh 60-session-day window, thus putting this year's deadline at May 16 to avoid a 2017 review. The DOL's Fact Sheet on the new white collar overtime rule says it would raise the weekly salary required to exempt an employee from overtime from $455 a week to $921 a week, or $47,892 a year (currently, $23,660).