May 16, 2016 - 10:00am

Icing On Overtime Cake: Plaintiffs’ Bar Getting Ready


Vice President, Employment Policy

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DOL

We all know the Department of Labor's new overtime regulation will be trouble for employers.  By doubling the salary threshold to more than $47,000 with automatic updates, the new regulation will force employers to either increase the salary of currently exempt employees or reclassify them to hourly wage earners, eligible for the overtime premium.  

The DOL ignored the pleas by employers from all sectors—small businesses, nonprofit, public, education, and other—to back off the rulemaking and conduct a legitimate economic analysis that would show the real impact the regulation will have on employers and employees. Instead, what we are expecting is a regulation that has been modified in only minor cosmetic ways, just enough for the administration to claim that changes were made but without providing any substantive relief.  

And now we see that the DOL may not even be employers’ worst problem. Waiting in the wings to pounce are the plaintiffs’ lawyers; these lawyers are salivating over the opportunities they see to go after employers, as if they have been deputized as some sort of posse unleashed to go after employers who may not even be aware of the new rule. Indeed, one of the key lawyers involved just left the Department after playing a significant role in developing the new regulation. In a recent piece from Bloomberg BNA several members of the plaintiffs’ bar and their allied advocates made clear that they are deciding how they will conduct “outreach” and “education” efforts to inform employees about the new requirements.

Furthermore, just because employers increase an employee’s salary above the threshold will not necessarily mean they are in the clear.  There will be an increased scrutiny on whether employees are actually performing the correct duties associated with their exempt status.  One comment in the BNA piece is that “We think there are going to be a lot of people who were misclassified who probably are going to feel a lot more comfortable coming forward and challenging the prior misclassification.”

Employers should also know that there is almost no such thing as a single plaintiff overtime lawsuit.  If one employee is misclassified, there will almost always be others. These get expensive very fast and are very hard to challenge.

The Chamber argued in its comments and meetings that one expected consequence of the new regulation would be an increase in litigation against employerswhat is referred to in the BNA piece as “add[ing] gasoline to that fire (a surge in overtime pay lawsuits) as many employers will not be in compliance with the Department of Labor regulations.” Unfortunately our predictions are coming true.

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About the Author

About the Author

Marc Freedman headshot
Vice President, Employment Policy

Marc Freedman is vice president of employment policy at the U.S. Chamber of Commerce. He is responsible for developing and advocating the Chamber’s response to OSHA matters, the Employee Free Choice Act, the Family and Medical Leave Act and mandated leave issues, and other labor and workplace issues.