Submitted online May 21, 2019, via regulations.gov
Amy DeBisschop
Acting Director of the Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW
Washington, DC 20210
Re: Comments on Regulatory Information Number (RIN) 1235-AA20: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees
Dear Ms. DeBisschop:
The Economic Policy Institute (EPI) respectfully submits these comments in response to the Department of Labor’s proposed overtime rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” (“EAP Rule”). EPI is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers, and assesses policies with respect to how well they further those goals. Careful analysis reveals that the Department’s overtime rule does not go nearly far enough to protect workers—leaving millions of workers behind—and, because of this, EPI strongly opposes it.
Just three years ago, the Department finalized an EAP rule following an exhaustive, more than two year rulemaking process. During this process, the Department met with over 200 organizations, including employees, employers, business associations, nonprofit organizations, employee advocates, unions, state and local government representatives, tribal representatives, and small businesses.1 The Department also received and reviewed over a quarter million public comments. In the 2016 Final Rule, the Department responded comprehensively to those comments and conducted a thorough economic impact analysis incorporating that input, along with a careful review of the academic literature.
The core provision of the 2016 rule was to increase the salary threshold under which most salaried workers are eligible for overtime pay when they work more than 40 hours per week from $455 per week ($23,660 for a full-year worker) to $913 per week ($47,476 for a full-year worker), the latter being the 40th percentile of the earnings of full-time salaried workers in the lowest-wage Census Region, which was at the time, and continues to be, the South. Further, the rule provided that the threshold would be updated every three years to the 40th percentile of the earnings of full-time salaried workers in the lowest-wage Census Region, in order that the threshold would not continually erode over time as the wage distribution rises. I project that the 2020 level of the threshold under the 2016 rule would be $982 ($51,064 for a full-year worker).
In November 2016—just before the 2016 rule was set to go into effect—a single district court judge in Texas enjoined the Department from enforcing the rule; the court later erroneously held the rule to be invalid. Instead of defending the rigorously determined threshold, the Department has proposed to rescind its 2016 rule and promulgate a new regulation with a much lower standard salary threshold. The core provision of the 2019 proposal is to set the salary threshold under which most salaried workers are eligible for overtime pay when they work more than 40 hours per week at $679 per week in 2020 ($35,308 for a full-year worker), which is the projection to January 2020 of the 20th percentile of the earnings of full-time salaried workers in the lowest-wage Census Region, currently the South, and/or in the retail industry, excluding nonexempt workers and workers who are not subject to the Fair Labor Standards Act (FLSA) or who are not subject to the salary level test. The proposal does not include automatic updating. This methodology for setting the threshold is the same methodology used in the 2004 final rule.
In what follows, I will show why the 2004 rule was fundamentally flawed and why the 2004 methodology is therefore an inappropriate methodology to use to set the standard salary threshold. I will then show that the 2016 rule used a highly appropriate, albeit conservative, threshold. I will then discuss the importance of automatic indexing of the threshold to ensure that it doesn’t erode over time and, for transparency, setting the indexed threshold at a level that can be found in a series that is published on a regular basis by the Bureau of Labor Statistics. Finally, I will describe the workers affected by the current proposal and the impact on their earnings. The empirical analysis cited throughout this comment is based on pooled 2016–2018 CPS MORG data, following the same treatment of the data described by the Department in its proposal.
The 2004 rule was deeply flawed
The methodology for setting the standard salary threshold in the 2004 rule was fundamentally flawed. Prior to the 2004 rule, there were two sets of tests, each of which involved a duties test and a salary test. The duties test and salary test within each set had always worked together.2 One set of tests was the “long-test” set, which combined a stringent duties test (which included a 20 percent cap—40 percent in retail—on the amount of time overtime-exempt employees could spend on nonexempt duties) with a lower salary threshold. The other was the “short-test” set, which combined a much more lenient duties test with a higher salary threshold. Thus an employer who wanted to assert that a relatively low-paid employee was exempt had to show more rigorously that their duties were “bona fide executive, administrative, or professional” in nature, whereas for a more highly paid employee the employer did not have to make as rigorous of a showing.
In the 2004 rule, the Department included just one set of tests. For this set of tests, the Department created a “standard” duties test that was essentially the more lenient “short test” for duties. To remain consistent with the prior methodology, the Department should have paired this duties test with a higher salary threshold consistent with a short duties test. Instead, it used a lower salary level consistent with a long duties test. This was a fundamental error. In the 2004 final rule, the Department at one point implied that its methodology for setting the standard salary threshold at least in part accounted for the elimination of the long test, saying that it chose its methodology in part because of the change from the “short” and “long” test structure.3 That comment is what the Department chose to highlight in its 2019 proposal, saying that in the 2004 rule, the Department explained that its methodology “was warranted in part to account for the elimination of the short and long tests.”4
But the fact that the 2004 threshold did not in fact account for the elimination of the long test, and instead paired the more lenient duties test with a long-test threshold, is revealed by the Department in numerous places, including in Table 6 of the 2004 Final Rule, where $455 is referred to as a long-test salary level; in Table 4 of the 2004 Final Rule, which shows that $455 is in fact somewhat lower than a long-test threshold, with only 8.2 percent of exempt workers failing to meet the $455 salary level in the South; and in the 2017 RFI, in which the Department notes that “the $455 per week salary level was equivalent to the lower salary level that would have resulted from the methodology the Department previously used to set the lower long-test salary levels.”5 In other words, any claim that the Department accounted—at all—for the elimination of the long test in 2004 is wholly refuted by the Department’s own statements and data.
From 1958 until the 2004 elimination of the long test, the Department calculated the value of the two salary thresholds according to a two-stage process known as the Kantor method, first calculating the long-test salary threshold as the 10th percentile of earnings of exempt workers for low-wage regions, industries, and other low-wage groups, and then multiplying that threshold by somewhere between 130 and 182 percent—with the average multiple being 149 percent—to arrive at the short-test salary level.6 Respectfully, it may appear to an outside observer that the Department is attempting to obscure the fact that the 2004 methodology did not account for the elimination of the long test by not including the Kantor long-test method either as one of the alternatives in Table 4 of the 2019 NPRM or elsewhere in the proposal.7 In my calculations, I find that the value of the Kantor long test projected to January 2020 is $717.8 This is $38 above the proposed standard threshold of $679, revealing yet again that the 2004 methodology does not begin to account for the elimination of the long test, and that a standard salary threshold based on the 2004 methodology would need to be multiplied by somewhere between 1.3 and 1.82 to account for the elimination of the long test. Further, in order for the public have the chance to assess the threshold in the final rule with respect to key historical benchmarks, it is crucial that the Department include the value of the Kantor long test in the final rule.
Because of the mismatch between the duties test and the salary threshold in the 2004 rule, the methodology from the 2004 rule is not appropriate. If the Department were to set the standard threshold according to the 2004 methodology in the final rule, the Department would be doubling down on a fundamentally flawed approach.
One predictable result of the mismatch in the 2004 rule is the misclassification of hundreds of thousands of overtime-eligible employees as exempt. A RAND study identifying the number of workers who may be misclassified as EAP exempt found that 11.5 percent of salaried workers who did not pass the duties test were classified as exempt.9 If the Department were to use the 2004 methodology in the final rule, it would be intentionally adopting an approach that would subject hundreds of thousands of workers to wage theft. In addition to the harm this would cause misclassified workers, this would increase the Department’s enforcement burden.
Because the Department erred in 2004 and paired a “short” duties test with a low, “long-test” salary threshold, the only way the 2004 methodology for calculating the standard salary threshold could be used appropriately would be if the Department were to strengthen the duties test to align with the historical long test and account for Congress’s intent that only bona fide executive, administrative, and professional employees be exempt from overtime pay. For example, the Department could set a bright-line duties test requiring a strong majority of a worker’s work to be exempt, as previous rules did. The Department notes, “Because the long [emphasis added] duties test included a limit on the amount of nonexempt work that could be performed, it could be paired with a low salary that excluded few employees performing EAP duties.”10 Strengthening the duties test would also promote the proper classification of workers who have limited professional or managerial duties and who are not “bona fide” EAP workers. If the Department declines to raise the salary level, a more restrictive duties test is required to remedy the mismatch and reduce inappropriate classification.
The standard threshold in the 2016 rule was highly appropriate, albeit conservative
In 2016, the Department chose to correct the error in the 2004 final rule by retaining the same lenient duties test that was used in the 2004 rule, but correctly pairing it with a higher salary level consistent with a short duties test. According to the Kantor method, the value of the long-test threshold for the 2016 rulemaking was $684.11 Following the two-stage process described above, to get to the short-test threshold, the Department should have multiplied $684 by somewhere between 1.3 and 1.82 , which would result in a short-test threshold range of between $889 and $1,245. The threshold the Department chose, $913, was at the very low end of the range (in particular, it was more than $100 lower than the salary threshold resulting from the average ratio of the short to the long test—1.49—which would have resulted in a threshold of $1,019). Choosing a threshold near the bottom of the range was a conservative choice, more than accounting for the absence of a long test that employers could use to claim the exemption for lower-paid white collar workers who perform very little nonexempt work (i.e., workers who earn between a long-test and short-test threshold and who would pass a strenuous duties test).
Despite this clear record, the Department appears to have adopted two erroneous concerns of the district court judge who enjoined the 2016 rule: (1) that the salary threshold was too high because the number of newly overtime-eligible workers under the 2016 rule was large, and (2) that the large number of newly overtime-eligible workers under the 2016 threshold meant that salary threshold was so high that it displaced the role of the duties test. The Department states:
The district court’s decision raised concerns regarding the large number of exempt workers—4.2 million—who earned between $455 and $913 per week and thus would “automatically become eligible” for overtime under the $913 per week standard salary level. The district court noted that this relatively high number indicated that the salary level was displacing the role of the duties test in determining exemption status. The Department acknowledges these concerns and, additionally, in this proposal seeks to update the standard salary level in a manner that does not unduly disrupt employers’ operations; dramatically shift employee salaries, hours, or morale; or result in adverse economic effects.12
Both of these concerns are deeply misguided. The raw number of workers affected by any increase in the salary threshold is an absurd metric to use to assess whether the threshold is appropriate because the number is affected by factors that are wholly unrelated to the appropriateness of the threshold, including how long it has been since the prior update and whether the prior threshold was set at an appropriate level. The longer it has been since the previous update, the more workers will be affected, as inflation and the overall wage structure rise over time and erode the effective level of the threshold. In the case of the 2016 update, it had been over a decade since the prior update. And if the prior threshold had been set inappropriately low, as it was in the 2004 rule, the number of workers affected would need to be larger to correct the error.
The number of workers affected by any increase in the salary threshold can be decomposed into two main components: workers affected as a result of the passage of time since the previous update, and workers affected as a result of any change in methodology from the previous update. One way to isolate the “time” component is to simply look at how many workers would have been affected as a result of the 2016 rule if the methodology had been the same in 2004 and 2016—that is, if the 2004 threshold had been set at the 40th percentile of the weekly earnings of full-time salaried workers in the lowest-wage census region, as it was in 2016. In 2002—the data year the 2004 threshold is based on—the 40th percentile of the weekly earnings of full-time salaried workers in the lowest-wage census region, the South, was $660. If in 2016 the threshold had been increased from $660 to $913 instead of from $455 to $913, the number of workers affected would have been 2.9 million.13 That means that 2.9 million of the 4.1 million workers affected by the 2016 rule were affected as a result of the erosion of the effective level of the threshold since the prior update, not as a result of the change in methodology. The remaining 1.2 million workers were affected as a result of the change in methodology from the flawed 2004 methodology to the appropriate methodology of the 2016 final rule.
The other concern that the Department seems to adopt, that the large number of newly overtime-eligible workers under the 2016 threshold meant that salary threshold was so high that it displaced the role of the duties test, is flatly refuted by the Department’s own analysis. Figure 3 of the 2016 final rule shows that 47 percent of white collar workers who failed the duties test earned above the 2016 salary level. This means that of white collar salaried workers who were eligible for overtime, nearly half—6.5 million workers—had their overtime-eligible status determined by the duties test alone, demonstrating that the duties test was not somehow “displaced” by the 2016 salary threshold but was, in fact, still essential to the exemption.14 Lowering the threshold in the interest of not displacing the duties test is solving a problem that the Department’s own analysis shows does not exist, and, by lowering the threshold, the Department would knowingly expose a greater number of lower-earning salaried workers to wage theft (which, as discussed above, is the predictable outcome of a low salary threshold paired with the standard duties test).
If the Department is concerned about the number of workers affected in a given year by raising the salary threshold to an appropriate level, it should phase in an appropriate threshold over time instead of reducing the threshold to an inappropriate level. For example, the Department could implement a three-stage phase-in, raising the threshold to $679 (or $35,308 for a full-year worker) in 2020; raising it to $866 (or $45,032 for a full-year worker) in 2021; and, finally, raising it in 2022 to be equal to the 40th percentile of the weekly earnings of full-time salaried workers in the lowest wage census region (I project that this will be $1,030—or $53,560 for a full-year worker—in 2021Q2, which could be used to set the threshold for 2022).
Automatic indexing is crucial
The Department is not proposing automatic indexing and instead says it is “committing to evaluate” the threshold more frequently going forward—in particular mentioning that it has an intention to go through notice and comment rulemaking every four years to update the rule using the same methodology as the most recent final rule, but noting that the Labor Secretary could forestall this process at his or her discretion.15
This is problematic on many levels. One, if the rule really is updated every four years through notice and comment rulemaking, that is still too long between updates and will leave workers behind in the meantime. Updating should occur no further apart than every three years, with one year being optimal, to reduce the degree of erosion between updates.
Further, increasing the frequency of rulemaking in this way is a terribly inefficient way for the government to operate. Rulemaking is extremely time- and resource-intensive, and it doesn’t make any sense to go through that process just to maintain the status quo. Automatic updating should be used to ensure that the standard doesn’t continually erode until such time that policymakers want to change the actual substance of a rule, at which point notice and comment rulemaking is appropriate.
Perhaps more importantly, vague commitments to update the rule, rather than implementation of automatic updating, is what has led to long periods of inaction in the past, with workers getting the short end of the stick as their protections erode over long stretches of time. My analysis, described in greater depth below, shows that if this rule is implemented as proposed in 2020, workers will earn $1.2 billion dollars less in 2020 than they would have earned under the 2016 final rule in the first year of implementation—but the annual losses will grow to $1.6 billion over the first 10 years of implementation due to the lack of automatic updating.
Finally, automatic updating is important for employers, too. With automatic updating, as opposed to a flexible intention to update the rule every four years, employers know exactly what to expect and when to expect it, which provides businesses the crucial predictability they need to plan for the future.
The threshold should be set at a level found in a series published on a regular basis by BLS
It is important that the Department set the threshold in the final rule at a level that is found in a series published on a regular basis by the Bureau of Labor Statistics (BLS), as the 2016 rule did. To return—as the NPRM proposes—to a methodology that, in order to replicate, requires a highly sophisticated and time-consuming analysis of BLS microdata and a deep knowledge of the intricate details of the Fair Labor Standards Act would be a major step backward in transparency.
Further, as discussed above, the Department should automatically update the salary threshold at least every three years. Benchmarking the rule to a regularly published BLS series would mean that employers and employees alike could plan for future updates with a high degree of certainty. Even if the Department finalizes its proposal to “commit” to updating the rule through notice and comment rulemaking every four years based on the same methodology used in the final rule, benchmarking the rule to a regularly published BLS series would still provide a crucial planning tool for the regulated community and for affected workers.
Millions of workers will be left behind by the current proposal
If the Department finalizes its new proposal, millions of workers who should get overtime protections will fall through the cracks. In its proposal, the Department estimates that 2.8 million fewer workers will be impacted under its proposal than under the 2016 rule.16 However, this is a vast underestimate, for two reasons. First, the Department uses pooled 2015–2017 data, benchmarked to 2017 wage and employment levels, and states that these figures “are the Department’s best approximation for impacts starting in 2020.”17 This leads to an underestimate because it doesn’t account for employment growth and other changes in the three years between 2017 and 2020. In my analysis, I correct for this issue by using more updated data—pooled 2016–2018 data, benchmarked to 2018 wage and employment levels—and inflating employment and wage levels based on Congressional Budget Office economic projections for 2018–2020.18
Second, the Department’s estimate of those left behind leaves out an entire group of workers who would be affected by the rule—those who will no longer get strengthened protections. To understand what a large omission this is, it is useful to keep in mind that there are two groups of workers who would be affected by any update to the overtime threshold. One group consists of those workers who get new protections under a new threshold—namely, salaried workers who pass the duties test who earn above the old threshold but below the new threshold. These workers are not legally entitled to overtime protections under the old threshold but would be overtime-eligible under the new threshold. Another large group of workers who are affected by any increase in the threshold are workers who get strengthened protections—salaried workers who earn above the old threshold and below the new threshold but who do not pass the duties test. These workers should have overtime protections under the old threshold—but because they earn a salary above the threshold, they are vulnerable to being misclassified by their employer as overtime-exempt. As mentioned above, research shows that this type of misclassification is pervasive. However, once the threshold rises above their earnings level, the status of these workers as overtime-eligible becomes very clear. In its estimate of how many workers would be left behind by its proposal, the Department ignores the millions of workers who will not get strengthened protections under its proposal but who would have gotten strengthened protections under the 2016 threshold.19
Our analysis shows that 8.2 million workers who would have benefited from the 2016 final rule will be left behind by this proposal. The 8.2 million workers left behind by this proposal are made up of 3.1 million workers who would have gotten new overtime protections under the 2016 rule and another 5.1 million workers who would have gotten strengthened overtime protections under that rule. The 8.2 million workers left behind include 4.2 million women, 3.0 million people of color, 4.7 million workers without a college degree, and 2.7 million parents of children under the age of 18. Of the 2.7 million parents left behind, more than half (1.4 million) are mothers. It’s worth noting that being left out of coverage under the Fair Labor Standards Act’s overtime provisions has particular disadvantages for new mothers, since the Affordable Care Act’s protections requiring employers to provide time and space for nursing mothers to express milk at work apply only to employees who are not exempt from overtime pay.20
Further, because the Department is using a flawed methodology that sets the threshold far below where it was set using the appropriate methodology of the 2016 rule, workers will lose $1.2 billion dollars each year. This calculation includes both wages lost by workers who would have gotten new protections under the 2016 rule but would not get new protections under the current proposal, and wages lost by workers who would get new protections under both the current proposal and the 2016 rule but who would have gotten a larger raise under the 2016 threshold. The calculation does not include earnings losses by those who would have gotten strengthened protections under the 2016 rule but would not get them under the current proposal. As described above, the annual earnings losses would grow from $1.2 billion to $1.6 billion (in inflation-adjusted terms) over the first 10 years of implementation due to the fact that the current proposal does not include automatic indexing. Additional breakdowns and discussion of workers left behind by this proposal can be found in the attachment (see below).
Conclusion
We conclude by noting that this proposal lets down millions of workers and their families by failing to set the overtime salary threshold at a level that would lead to better use of one of the most precious resources of working families in this country—their time. The standard salary threshold in this proposal is so low that it fails to provide a true incentive for employers to balance the additional hours they ask of their workers with the costs of either overtime pay or of raising salaries to the new salary threshold. That incentive is inseparable from a fundamental principle embodied in the Fair Labor Standards Act—that workers should receive a fair day’s pay for a long day’s work.
The Department’s proposed rule—which at its heart is based on the notion that someone making $35,308 a year is a well-paid executive who doesn’t need or deserve overtime protections—flies in the face of those principles. As currently proposed, this NPRM will have detrimental effects on workers, depart from decades of historical precedent, and undercut the purpose of the Fair Labor Standards Act’s overtime provisions, leaving behind millions of workers who would have been covered by the painstakingly determined 2016 rule. As a result, the Department must either raise the proposed salary level significantly or strengthen the duties test to truly capture only those who should be exempt in the final rule. The Department must also provide a concrete proposal for regularly updating the salary level. Finally, and crucially for transparency, the Department must not return to a methodology for setting the threshold that requires a sophisticated and time-consuming analysis of microdata to replicate, but should instead set the threshold at a level that is found in a series published on a regular basis by the Bureau of Labor Statistics.
Thank you for the opportunity to submit comments on the NPRM. Please do not hesitate to contact me at (202) 533-2560 if you have questions about EPI’s empirical analysis or about anything else in these comments.
Sincerely,
Heidi Shierholz
Senior Economist and Director of Policy
Economic Policy Institute
Attachment:
More Than Eight Million Workers Will Be Left Behind by the Trump Overtime Proposal
Endnotes
1. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32396 (May 23, 2016).
2. “The Department has always recognized that the salary level test works in tandem with the duties requirements to identify bona fide EAP employees and protect the overtime rights of nonexempt white collar workers” (Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32444 [May 23, 2016]).
3. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 69 Fed. Reg. 22167 (April 23, 2004).
4. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10906-10907 (March 22, 2019).
5. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 69 Fed. Reg. 22121 (April 23, 2004); Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [request for information], 82 Fed. Reg. 34616 (July 26, 2017).
6. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32463 (May 23, 2016).
7. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10925–10926 (March 22, 2019).
8. Following the methodology in Note D of Table 9 of the 2016 Final Rule, and surrounding discussion (Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32462 [May 23, 2016]). That discussion notes that the three lowest-wage industries at that time using the Kantor method population were leisure and hospitality, other services, and public administration. Using the Kantor method population and current data (pooled 2016–2018 CPS MORG data), I find that the three lowest-wage industries are education and health services, leisure and hospitality, and other services, so those are the industries used in this analysis.
9. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10943 (March 22, 2019).
10. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32465 (May 23, 2016).
11. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32467 (May 23, 2016).
12. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10909 (March 22, 2019).
13. Note that this is an underestimate to the extent that if the threshold were $660, there would likely be more people earning $660 instead of somewhat below $660 than what we actually see in the data, as some workers earning somewhat below $660 would have been bumped up to $660 so their employers could claim the exemption.
14. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [final rule], 81 Fed. Reg. 32465 (May 23, 2016).
15. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10914-10915 (March 22, 2019).
16. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10951 (March 22, 2019).
17. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10950 (March 22, 2019).
18. Heidi Shierholz, More Than Eight Million Workers Will Be Left Behind by the Trump Overtime Proposal, Economic Policy Institute, April 2019.
19. While the Department does not include this group in its analysis of how many fewer workers will be impacted under its proposal than under the 2016 rule, it does mention them elsewhere in the proposal: “The Department also anticipates that 3.6 million employees paid between $455 and $679 per week who fail the standard duties test (i.e., that are and will remain nonexempt)—2.0 million salaried white collar workers and 1.6 million salaried blue collar workers—will have their nonexempt status made clearer because their salary will fall below the proposed threshold” (Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees [proposed rule], 84 Fed. Reg. 10911 [March 22, 2019]).
20. Heidi Shierholz, “Millions of Working Women of Childbearing Age Are Not Included in Protections for Nursing Mothers,” Working Economics Blog (Economic Policy Institute), December 10, 2018.
