Earlier this year, the absence of Senator Rand Paul (R-Ky.) from a meeting of the Health, Education, Labor and Pensions Committee enabled David Weil, President Biden’s nominee to head the Wage and Hour Division (WHD) of the Department of Labor (DOL), to make it out of the committee, where his nomination had been languishing for months. That small victory for Dr. Weil’s nomination ultimately ended in defeat on March 30, 2022, when the full Senate voted not to proceed with his nomination. The vote was 53-47, with Senators Joe Manchin (D-W. Va.), Kyrsten Sinema (D-Az.), and Mark Kelly (D-Az.) joining all of the Republican Senators in rebuffing the President’s nominee.

Dr. Weil, who currently is a professor at Brandeis University, headed the WHD under the Obama Administration. During that time, the DOL published a Final Rule that would have more than doubled the minimum salary to qualify for the Executive, Administrative, and Professional overtime exemptions (a.k.a. the “white collar” exemptions). That Final Rule was struck down by a Texas federal judge shortly before going into effect in late 2017, and a new Final Rule was issued under the last administration, raising the minimum annual salary to a relatively more modest $35,568, where it currently stands. Nevertheless, the current DOL has signaled that it intends to issue another Final Rule that would increase the minimum exempt salary again, quite possibly to or near the same level that was sought to be enacted during the Obama Administration.

It remains to be seen who and when the Biden Administration will next nominate to head the WHD, a decision that certainly may be impacted by the midterm elections in November 2022.