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Office of the Vermont Attorney General

Attorney General TJ Donovan Joins Opposition to U.S. Department of Labor’s Attempt to Rollback Overtime Pay Protections

October 23, 2017

CONTACT: TJ Donovan, Attorney General, 802 595 8679

Attorney General T.J. Donovan joined a coalition of Attorneys General in opposing the U.S. Department of Labor’s efforts to roll back overtime pay protections for 25,000 Vermonters and millions of Americans.

The attorneys general submitted comments in response to the U.S. Department of Labor’s (USDOL) Request for Information concerning the executive, administrative, and professional (EAP) exemptions to the Fair Labor Standards Act (FLSA). By this action, the USDOL threatens to roll back the Obama administration’s rule that expanded overtime compensation for workers by raising the salary level test that would limit the number of employees who qualify for the FLSA exemptions. A salary test is an objective test that provides a bright line rule for workers and law enforcement agencies to identify when a worker is misclassified or underpaid in regards to overtime. If fewer workers are eligible for the salary level test, then law enforcement and employers must rely on a duties test which is more subjective and leaves workers more open to exploitation.

Attorney General T.J. Donovan said: “People who work overtime should be paid for overtime. Hard working Vermonters deserve a fair shake.”

“The Obama administration’s overtime rules brought the FLSA into the 21st century, and Attorney General Donovan is, correctly, trying to stop efforts to turn back the clock on these protections. We stand with working Vermonters and will work to prevent further damage to the middle class in our state and across the country,” said attorney David Mickenberg on behalf of Working Vermont, a coalition of public and private sector unions in Vermont.

FLSA overtime rules were established to make sure that no one but higher-level workers with control over their time or tasks are excluded from overtime pay. However, many workers are wrongly classified as having autonomy over their tasks and schedule. Such misclassified workers include first-line supervisors at fast-food stores, car washes, retail stores, and construction sites; administrative employees, such as clerical and office workers; and professional employees, such as medical and dental technicians, mid-level IT employees, and film and television production assistants.

Under the Obama administration, the USDOL issued a new rule raising the minimum weekly salary amount used in part to determine whether an employee should be exempt from the FLSA’s overtime requirement. The increase, from $455 to $913 per week, was an attempt to update salary test from levels established in 1975.

The attorneys general argue that a meaningful salary test is essential to protecting workers from being misclassified as EAP exempt when they are lawfully entitled to receive overtime for hours worked beyond 40 hours a week. They urge USDOL to set a salary level that is at least as protective as the 2016 Final Rule.

A meaningful salary level test makes state labor law enforcement more effective and efficient. A weakening of the salary level test will force employees, employers, and states to rely instead on a fact-specific “duties” test that is more susceptible to exploitation. Even for well-intentioned, law-abiding employers, a salary level test is a useful bright line. Small businesses may not have sophisticated employment counsel to advise them on the more complex duties test. Without a salary level test, misclassification would be even more pervasive due to employer and employee uncertainty, as well as intentional abuse by employers. Low-wage workers are particularly vulnerable to exploitation because they generally cannot afford their own private counsel to assist them.

Click here to read the comments, which were led by New York Attorney General Eric Schneiderman and filed by the Attorneys General of New York, California, Delaware, Illinois, Iowa, Maryland, Massachusetts, Vermont, and Washington.

Last modified: March 12, 2018