HR Update: Senate Bill Also Targets Overtime Ruling

There are some topics that lend themselves to updates. Take the U.S. government, for instance. (I’ll withhold any “Take my government, please” jokes for now.)

On May 18, President Obama signed a Department of Labor Final Rule that would vastly change overtime pay criteria for certain white-collar salaried employees. The ruling, set to take effect Dec. 1, among other things doubles the criteria for salary level test at $47,476 under the Fair Labor Standards Act.


The effective date of the new Department of Labor overtime ruling is December 1. Several bills and lawsuits may — or may not — postpone the start date.

As I mentioned in a blog post I published last week, 4.2 million U.S. workers will fall under the new ruling and cause a $1.1 billion increase in worker pay each year. Chris Schulte from the law firm CJ Lake provided those statistics in a webinar he presented to AmericanHort members called “Avoiding Audit Surprises: The New Overtime Rule and Other Federal Labor Topics.”

However, Schulte mentioned in his Sept. 29 presentation, this ruling may not end up set in stone. At the time, there were two House Resolutions on the table aimed at adjusting the ruling’s time frame.

H.R. 5813, a bi-partisan bill, would call for a three-year phase-in for the plan. H.R. 6094, which was passed in the House, would call for a six-month delay in starting the effective date. This delay could potentially have a new administration strike the ruling all together or allow two lawsuits on the books to affect the ruling as well.

The two lawsuits, one filed by 21 states attorneys general and one by the U.S. Chamber of Commerce plus 50 business groups and trade associations, were filed in the East District of Texas on Sept. 20. Although these suits are looking to block the ruling, their primary concern is automatic increase without revisiting the ruling in the future.

Interestingly, in the same segment of his presentation, Schulte made an off-hand comment about a Senate bill that also was looking to adjust the ruling. And thanks to Davi Bowen, AmericanHort’s government relations and grassroots representative, his blog post on Oct. 13 expanded on Schulte’s comment. (Note: You must be an AmericanHort member to view the entire post.)

Senate bill looks to phase in overtime ruling over 5 years

According to Bowen, Sen. Lamar Alexander (R-TN) introduced the Overtime Reform and Review Act on Sept. 29. (It was introduced the same day as Schulte’s presentation, which explains why he just mentioned it in passing.) S.3464 would mimic Rep. Kurt Schrader’s (D-OR) H.R. 5813, except it would be phased in over five years instead of three.

In Alexander’s bill, the phase-in also would skip 2017 completely, allowing employers time to assess their employees and implement a plan, according to Bowen. Like Schrader’s House bill, the Senate bill still reaches the same minimum salary threshold as the current Department of Labor final ruling.

Both Schrader’s and Alexander’s bills would also require the salary requirements to be reviewed periodically instead of following an automatic index.

My money’s on these two bills coming together to be put before the president. I’d even put a $2 bet on President Obama signing it into law, considering the basic tenants of the original ruling are still there in both bills.

I’d also like to take a moment to gush over the potential for bi-partisan legislation to pass around a major election. I’m not one to sit there and read for enjoyment. But I bet if you looked through all of the bills that get introduced in Congress, there’s more bi-partisan legislation introduced than what gets reported.

Changes to overtime ruling or not: Still be prepared

So as much as I’d like to stay in that dream world of both sides of the aisle working together bring a common sense approach to government, let me get back to the topic at hand. Businesses have to be ready for this ruling to take affect Dec. 1.

Overtime plan

No matter what happens with the overtime ruling, make sure you have a plan and get your records and documents in order

This was the main conclusion in Schulte’s presentation in the first place: Be prepared for whatever may come. Bringing back his advice from my last post on the topic:

  1.  Have a plan and be prepared for any ruling (or delay) that may happen. Make sure to start enacting a plan well before your season starts.
  2. Keep up with your record-keeping and your document-retention requirements.

As of right now, AmericanHort, the National Christmas Tree Association and most of the Lighthouse Program state association partners joined the Partnership to Protect Workplace Opportunity in crafting a letter to support S.3464. But what if nothing comes of the lawsuits and bills moving through Congress, and the “overreaching” (Bowen’s word) overtime ruling stands pat?

Today, the worry is overtime rules. But there are so many other things in the horticulture HR world that require diligent record-keeping: OSHA, immigration, ACA, payroll taxes, and so on. And again, there are products out there that can automate your human resources record keeping and document retention, like Sage HRMS.

I’d also like to point out that Bowne said Schulte’s presentation was among the most popular presentation hosed by AmericanHort this year. That’s really good news, as it means the horticulture industry is taking this seriously.

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