In order to amend the changes, a bill would have to pass both houses of congress and be signed by the President.
Presidential Support (or not)
Our current president, Barack Obama, remains in office until mid January. His administration has made clear that he doesn’t intend to support a delay of the changes from happening on December 1st. While a new president will be voted in on November 8th, they won’t actually take office until mid January. Clinton is likely to defend the proposed FLSA changes; Trump is not and could reverse the changes without congressional action. In any case, there would be a gap of a month and a half where organizations who don’t comply with the changes would be at risk of legal action.
Summary of Activity in Congress
There is a whole host of activities in some house of Congress or other, aimed at delaying or amending the FLSA changes.
- On September 21st, HR6094 was introduced to delay implementation of the changes until 6/1/2017. This measure has passed the house, but not yet the senate. There is a Senate version of this bill (S3462) that is currently in committee.
- On July 14th, HR5813 introduced a phased approach for implementing the changes that would take from December 2016 until 2019 to reach the $47k threshold. This version also removes automatic updating. If this bill were to pass, the salary threshold would increase to just $35,984 ($17.30/hr) on December 1st of this year. This bill is currently in a House Committee. There is a Senate version (S3464) that is more conservative and would increase to the $47k threshold a year later, by 2020. The senate version is also in committee.
The Senate is on break until November 14th. Because they’ll be out for Thanksgiving they have just eight working days between now and December 1st. The House is also on break until November 14th, and with their Thanksgiving holiday have just six working days before December 1st.
Last Ditch Legal Effort
Twenty-one states have filed emergency motions to temporarily bar the overtime rule. As a judicial action, this wouldn’t have to be approved by the Office of the President. The basic argument being used is that the Department of Labor has overstepped into States’ sovereignty. That said, not all states, blue or red, agree with this claim so this is very much seen as a last ditch delay effort.
At the end of the day, or the month, it’s likely that the FLSA changes will happen on December 1st. You have a few things to consider: how risk averse is your organization? Are you prepared for the changes if they do go live? Do you have a communication plan in place? And finally, is your organization designed around compliance or designed around values and results that happen to be compliant? For some organizations who have already begun to adjust pay practices in anticipation of the December changes, they find that the adjustments are in line with organizational values and their talent strategy. While they needed the legal push to make the changes, ultimately they’re glad that they did to better attract and retain their top talent.
Need help understanding the FLSA? Check out this primer we put together!