Comment Period Will Not Be Extended

There will be no extension of the original 60-day period for commenting on the U.S. Labor Department's proposals and requests relating to the federal Fair Labor Standards Act's Section 13(a)(1) exemptions. U.S. Wage and Hour Administrator David Weil has so notified members of the House of Representatives and the Senate (see below for a link to a copy of Dr. Weil's letter to the House Committee on Education and the Workforce).

This means that only those comments received by 11:59 p.m. this coming Friday, September 4, 2015 will be considered in USDOL's final rulemaking. 80 Fed.Reg. 38516.

"Outreach", "Listening", "Past Experience"

Dr. Weil's letter takes the position that the 60-day period is sufficient due in part to what he described as "an extensive outreach program, conducting listening sessions" undertaken in connection with the initiative. He also says that "past experience" supports his view.

Insofar as past experience is concerned, USDOL provided a 90-day comment period when it proposed its prior set of exemption changes in 2003.

Furthermore, whatever value generalized "listening sessions" might have brought to the process, these could by no means serve as substitutes for an adequate opportunity to evaluate and to comment upon and respond to the nearly 100 pages of specific proposals, requests, and explanations USDOL spent almost 16 months preparing.

And with respect to who might actually have had the Administration's ear, we have been attempting for more than 75 days now to secure documents revealing with whom the White House's Office of Information and Regulatory Affairs was reportedly engaged in a flurry of meetings about the proposals in the run-up to their release. So far, the only response has been a June 18 e-mail acknowledgement that our Freedom of Information Act request was received.

In any event, it appears that USDOL ultimately listened to opponents of any extension of the comment period, a representative example of the views of which are contained in this joint letter to USDOL from the Economic Policy Institute and others.

The Bottom Line

There is still time to prepare and submit substantive comments, even if they are relatively brief.

We urge employers to do so.

Weil Letter Declining to Extend Comment Period.pdf (90.77 kb)