New I-9 Form and DOL Request for Comments on Federal Overtime Exemption Rules
The United States Citizen and Immigration Services (“USCIS”) has issued a new Form I-9. The only significant change is to add a new List C document, a Consular Report of Birth for a U.S. citizen board abroad. Employers must begin using the new form by September 18, 2017. The new Form I-9 is available here.
In other news, the federal Department of Labor (“DOL”) is seeking public comment on possible revisions to the federal overtime exemption rules. As employers will recall, last year a new overtime rule was published that dramatically increased the salary threshold to qualify for exempt status under the executive, administrative, and professional exemptions to over $47,000 per year. However, just prior to the rule’s effective date, a Texas court enjoined the rule. The DOL (still under the Obama administration at that time) appealed the injunction ruling and that appeal is currently pending before the Fifth Circuit. Many wondered whether the DOL, now under the Trump administration, would abandon the appeal. It did not do so, but it did recently file a reply brief before the Fifth Circuit defending the DOL’s authority to adjust the salary level threshold for exempt status under the Fair Labor Standards Act, but stating that it did not intend to enforce the $47,000 salary threshold set forth in the challenged 2016 rule. Instead, the DOL indicated that it intended to solicit public comment on a different salary threshold and to propose a new rule. It is unclear how the Fifth Circuit ultimately will rule.
In the meantime, the DOL recently issued its request for public comment on both the 2016 rule and on other possible revisions to the overtime exemption rules. The request seeks comments on several topics, including whether the salary threshold should be adjusted for inflation and, if so, what the measure of inflation should be; whether changes to the duties test are warranted; whether exempt status should be determined solely based on a duties test and not on a salary threshold; whether there should be multiple salary thresholds that vary depending on employer size and/or locale; the impact of the 2016 rule changes on employers; and whether the compensation level for the highly compensated employee exemption should be indexed to inflation.
Employers may submit comments electronically or by mail between now and September 24, 2017. For more information on the Request for Information and on how to submit comments, please click here.