According to the latest report from the U.S Department of Labor (DOL) regarding its regulatory agenda, released this week, the DOL has now set the publication of the new proposed Overtime Rule for August 2023. However, given the current status of the President’s nominees for both the Secretary of Labor and the Wage and Hour Division (WHD) Administrator, further pushback of this date certainly seems possible.

More than two years ago, in testimony before the House Education and Labor Committee, then Secretary of Labor Marty Walsh stated that the current minimum salary necessary to qualify for the Executive, Professional, and Administrative exemptions from overtime – a.k.a. the “white collar” exemptions – under the Fair Labor Standards Act (FLSA) was “definitely too low.” Since the beginning of 2020, that annual salary level has been $35,568 ($684 per week), while the minimum annual salary required to satisfy the “Highly Compensated Employee” (HCE) exemption is $107,432.

In the Fall of 2021, the DOL first formally listed the publication of a new Overtime Final Rule in its regulatory agenda. The WHD then spent several months holding virtual “town halls” with employees and employers to gather initial input for the anticipated rule, with an expected publication date of Spring 2022 for its Notice of Proposed Rulemaking (NPRM).

And then we waited. And waited, as the expected release date of the proposed rule continued to be pushed back, undoubtedly due in part because the Senate has confirmed neither Julie Su, President Biden’s nominee to replace Walsh as Secretary of Labor, nor Jessica Looman, his nominee to lead the WHD. DOL also may be waiting for a ruling on pending summary judgment motions in a lawsuit challenging the Department’s authority to make the prior increase. See our Special Report, Fifth Circuit Reverses Denial of Preliminary Injunction to Invalidate DOL Tipped Dual Jobs Rule.

So the wait continues.