FLSA Litigation’s Greatest Hits: Taking Care of Business, and Working Overtime

Bloomberg BNA discusses the issues with the Department of Labor's overtime rules with Trey Kovacs. 

Trey Kovacs, a labor policy expert at the Competitive Enterprise Institute in Washington, DC, notes that while this change has not actually been proposed, the DOL is asking the public to comment on whether and how this change might best be made.

However, Kovacs pointed out that there are several problems with the quantitative duties test approach. In particular, he warned of the potential pitfalls of adapt- ing an approach similar to the one currently in use in California.

The rule in California requires managers to devote at least 50 percent of their working time to EAP activities to be considered exempt from overtime rules.

Kovacs said that such a change could create a huge headache for employers. ‘‘How is an employer sup- posed to determine how much non-EAP activity its managers perform? Month-to-month, the amount of non-EAP activity will change,’’ Kovacs inquired.

Another problem with the California primary duties test, according to Kovacs, is that it is possible that man- agers may perform EAP and non-EAP activity concur- rently. ‘‘For example, a manager supervises a stocker while stocking shelves herself,’’ Kovacs explained. ‘‘Would the DOL count this activity as either EAP activ- ity or non-EAP activity?’’

Until the DOL puts forth a concrete proposal, Kovacs said, the answers to all these questions will remain un- known.

Kovacs pointed out that highly contentious rules of- ten take longer to finalize than projected, and that the DOL has to review over 300,000 comments on the rule submitted by the public.

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