Overtime Rule Comment Period Ends

The Department of Labor has refused to extend the November 7th deadline for the submission of comments on the proposed rule that would increase the salary basis threshold for executive, administrative, and professional employees to over $55,000 per year. The EEOC has begun the EEO-1 annual data collection period. The National Labor Relations Board has finalized a joint employment rule that will become effective on December 26th. An Executive Order and legislation concerning artificial intelligence has been introduced in the Senate. 


DOL Declines to Extend FLSA Overtime Rule Comment Period – The Department of Labor (DOL) denied multiple requests to extend the comment period beyond 60 days for the Fair Labor Standards Act (FLSA) overtime rule. The DOL stated that the “original 60-day comment period is a reasonable and adequate amount of time to provide notice and an opportunity for the public to comment on the proposed rule.” DOL noted that this is the same amount of comment time it provided the last two times these regulations were updated. The comment period ended on November 7th and there were over 15,000 comments received on the proposed rule.


The proposed rule would increase the salary basis threshold for executive, administrative, and professional employees from $684/week ($35,568/year) to $1,059/week ($55,068/year). The salary threshold for highly compensated employees would be increased to $143,988/year from $107,432/year. The proposed rule would automatically update the earnings thresholds every three years in order to keep pace with changes in worker salaries.


EEO-1 Data Collection Period Begins – On October 31st, the Equal Employment Opportunity Commission (EEOC) announced the opening of the 2022 EEO-1 Component 1 data collection. The submission deadline is December 5th. The EEO-1 Component 1 report is a mandatory data collection that requires all private sector employers with at least 100 employees and federal contractors with 50 or more employees that meet certain criteria to submit workforce demographic data including data by job category and sex, race, and ethnicity.


NLRB Finalizes Joint Employment Rule – The National Labor Relations Board (NLRB) issued a final rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA). The new rule becomes effective on December 26, 2023, and will only be applied to cases filed after the effective date.


Under the final rule, an entity may be considered a joint employer of another employer's employees if the two share or codetermine the employees' essential terms and conditions of employment


The NLRB advised that under the new standard established in this rule, an entity may be considered a joint employer of another employer’s employees if the two share or codetermine the employees’ essential terms and conditions of employment.” The NLRB defines the essential terms as including wages, benefits, and other compensation; hours of work and scheduling; assignment of work; supervision of the performance of work; work rules and directions for the performance of work and the grounds for discipline; the tenure of employment including hiring and firing; and working conditions concerning the health and safety of employees. The new standard rescinds the final rule that was issued in 2020.


AI Executive Order Issued – President Joe Biden has issued an Executive Order on the Safe, Secure and Trustworthy Development and Use of Artificial Intelligence (AI). The Executive Order includes a commitment to supporting American workers to ensure that as AI creates new jobs and industries that workers benefit from any opportunities. The Executive Order commits the Administration to “adapt job training and education to support a diverse workforce and help provide access to opportunities that AI creates.” It also notes that AI should not be implemented in ways that would “undermine rights, worsen job quality, encourage undue worker surveillance, lessen market competition, introduce new health and safety risks, or cause harmful labor-force disruptions.” Rather, according to the Executive Order, AI should be developed to improve the lives of workers and support human work. Additionally, the Administration will ensure that AI complies with all federal laws and is subjected to technical evaluations.


AI Legislation Introduced – Senator Bob Casey (D-PA) along with other Democratic Senators has introduced the No Robot Bosses Act (S. 2419) and the Stop Spying Bosses Act (S. 262). Both bills have been referred to the Committee on Health, Education, Labor, and Pensions.


The No Robot Bosses Act would add protections for job applicants and employees when  automated decision systems are being used & would require employer disclosure of when and how these systems are being used. According to Senator Casey, “As robot bosses become more prevalent in the workplace, we have an obligation to protect working families from the dangers of employers misusing and abusing these novel technologies.”


The bill would: prohibit employers from relying exclusively on an automated decision system in making employment-related decisions; require periodic testing & validation of automated decision systems for issues such as discrimination and biases before such systems are used in employment related decisions; require employers to provide training on the proper operation of automated decision systems; mandate employers provide independent, human oversight of automated decision systems before they are used in employment-related decisions; require disclosure on the use of automated decision systems, their data inputs and outputs and employee rights; and establish the Technology and Worker Protection Division at the Department of Labor to regulate the use of automated decision systems in the workplace


The Stop Spying Bosses Act (S. 262) would require disclosures and has prohibitions against employers engaging in the surveillance of workers. The bill would: require any employer collecting data on employees or applicants to disclose such information in a timely and public manner; prohibit employers from collecting sensitive data on individuals (i.e., off-duty data collection, data collection that interferes with organizing, etc.); and create rules around the use of automated decision systems to empower workers in employment decisions. 


Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues and was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.