Monday morning musings for workplace watchers.
DOL’s Overtime Fight Foreshadowed|Covid-Related Data Revealed
Rebecca Rainey: The US Department of Labor received more than 26,000 comments arguing for and against its proposal to expand overtime pay protections to more workers, a preview of the expected legal fight to come.
Under the Fair Labor Standards Act, workers who are salaried, make more than a certain amount per year, and work in a “bona fide executive, administrative, or professional capacity” are exempt from overtime pay. The Biden administration proposed a rule in August that would change the salary level to roughly $55,000 annually, making millions more workers newly overtime eligible. That salary figure would then update every three years to adjust for changes in the labor market.
Business groups have come out in force against the proposed changes, arguing it would increase payroll costs for employers, and acutely harm small businesses.
Given the similarities between the Biden DOL overtime proposal and the 2016 Obama overtime rule (which was later struck down in court), the legal arguments lodged by business groups may bring some deja vu, said Libby Henninger, a shareholder at Littler Mendelson PC.
One notable change is that the proposal would also raise the overtime exemption’s salary threshold in the US territories of Puerto Rico, Guam, and the US Virgin Islands, which haven’t been impacted by changes to the overtime rule since 2004. Henninger said she expects some legal arguments may focus on that piece of the proposal “given the economic state in many of these regions, and that this is going to be an enormous burden for them to have to absorb in such a short time.”
The Society for Human Resource Management said overall it supports efforts to update the overtime exemption’s salary threshold, but voiced concern about the $55,000 salary level proposed by the Biden administration, as well as the annual increases.
“We appreciate the WHD’s desire to create a mechanism to help ensure the salary level remains a meaningful test to screen out clearly nonexempt employees and agree that WHD can and should review the salary level periodically,” SHRM wrote in a comment letter dated Nov. 7. “However, this should not come at the expense of providing the regulated community the opportunity to receive notice and comment,” the group wrote, noting the DOL “should not ignore or limit its opportunity to evaluate the evolving economic landscape and conditions.”
Other groups, like the National Retail Federation, argue that there’s no need for the rulemaking at all, because the Trump administration updated the overtime exemption salary threshold in 2019.
But in the other corner, Democrats and worker advocates who support the proposal not only say the update is squarely within the department’s authority, but necessary to help the regulated community actually comply with the law.
In its comments on the rule, the National Employment Law Project pointed to a National Bureau of Economic Research analysis that found a widespread practice of employers using false managerial titles “to misclassify millions of workers as overtime exempt who should be receiving overtime.”
Businesses would also be better prepared for changes to the overtime exemption threshold if the level automatically updated every three years as the Biden administration proposed, a group of 19 Senate Democrats wrote to the DOL on Nov. 7.
Some proponents of the Biden administration’s latest proposal also wrote the Trump-era rule was “woefully inadequate.” Several commenters in support of the new rule pointed to an analysis from The Economic Policy Institute that estimates that the current salary threshold of $35,568 “captures just 15% of the full-time, salaried workforce.”
The DOL now starts the lengthy process of reviewing the comments before it can begin preparing its final rule.
READ MORE:
- Overtime Expansion ‘Daring’ Businesses to Sue Over Pay Threshold
- Millions More Workers Would Get Overtime Pay in DOL Proposal
- Top Wage Enforcer Focused on Being ‘as Protective as Possible’
- Comment Period for DOL Overtime Proposal to Remain at 60 Days
Bruce Rolfsen: During the Covid-19 pandemic worker advocates and health officials lamented the lack of data on how widespread infections were in workplaces.
The federal government didn’t offer much information on the workplace prevalence of the virus other than for health-care workers in hospitals and nursing homes.
In a case of “better late than never,” the DOL’s Bureau of Labor Statistics has released data that illustrates Covid-19’s impact in other industries and how infections remained high in 2022.
The BLS estimated that in 2022 there were 365,000 work-related cases of respiratory illnesses serious enough to require medical treatment beyond first aid or the worker missing a day or more from their usual job. That was a 35% increase over 2021’s 269,600 cases, but below 2020’s 428,700 cases.
The bureau doesn’t have a separate category for Covid cases, but does track them as respiratory illnesses from viruses “not elsewhere classified.”
The BLS released the new numbers Nov. 8 as part of the results of its annual Survey of Occupational Injuries and Illnesses, a report based on confidential information from about 200,000 employers.
It will begin collecting 2023 data once the year ends.
A new potential source of infection information next year will be the US Occupational Safety and Health Administration, which starting Jan. 1 will require about 52,000 establishments to provide details of workplace injuries and illnesses. Separately, OSHA’s Covid rule for the healthcare industry has been under White House review since December 2022 and no release date has been announced.
The BLS not surprisingly said the highest infection rate for 2021 and 2022 in private industries was among healthcare and social service workers. In combined numbers for 2021 and 2022, about 105 cases for every 10,000 workers led to the employees missing a day or more of work.
Private school and university workers had the second highest infection rate—about 95 cases for every 10,000 workers, and retail workers were third at about 50 cases. The rate for grocery store workers, part of the retail category, was about 190 cases per 10,000 workers in 2022.
The ill employees in those industries typically missed eight to 10 days of work.
The numbers don’t include work-related Covid deaths. The BLS is set to release 2022 fatality numbers on Dec. 19.
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