By A. Scott Hecker and Noah A. Finkel

Seyfarth Synopsis: With DOL’s overtime exemption rule currently under White House review, we could see its publication sooner rather than later.

We previously reported on the Biden Administration’s April 2024 target date to publish the DOL Wage and Hour Division’s (“WHD”) final rule on increasing the minimum salary level for white-collar exemptions, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.” An April release now appears distinctly within the realm of possibility since DOL sent the rule to OMB for Office of Information and Regulatory Affairs (“OIRA”) review late last week. 

OIRA, nestled within the broader OMB structure, reviews rules before agencies finalize them for publication in the Federal Register. But OIRA review is fickle, and recent examples demonstrate no clear timeline for approval. While the review of WHD’s independent contractor rule, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act,” took from September 2023 until early January 2024, DOL’s Davis-Bacon revision, “Updating the Davis-Bacon and Related Acts Regulations,” sat with OIRA from December 2022 into August 2023.

Whenever OIRA concludes its review, DOL will then move to publish the final overtime rule in the Federal Register. The final rule will go into effect sometime after publication, likely within 60 or perhaps 90 days. Of course, the rule will almost assuredly face legal challenge, which could delay or derail its implementation.