The Biden Administration’s Fall 2023 Regulatory Agenda

The Biden Administration recently announced the release of its Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions. One of the key areas of focus is the U.S. Department of Labor’s Wage and Hour Division (WHD), which is pursuing several significant rulemakings. However, there have been frequent delays in the process, including the proposed increase to the minimum salary level for white-collar exemptions.

Progress and Uncertainty in WHD Rulemakings

While WHD rulemakings have made some progress since the Spring 2023 Regulatory Agenda, there are still many important items that are currently in process with uncertain timelines.

The Employee or Independent Contractor Classification Rule

One example is the Employee or Independent Contractor Classification rule, which closed its comment period approximately one year ago. However, the regulated community is still awaiting the Department’s response to the more than 55,000 comments received. The current Regulatory Agenda sets the anticipated date for a final rule in November 2023, but since that date has passed, it raises questions about the Department’s failure to meet the deadline and the lack of a revised estimate.

The Minimum Salary Level Increase Rule

Another significant rule is the increase to the minimum salary level for white-collar exemptions. The Notice of Proposed Rulemaking was published in September 2023, with an estimated final rule release in April 2024. However, given the challenges the rule may face, such as Congressional Review Act issues, the upcoming presidential election, and potential litigation, the April 2024 estimate seems ambitious. The rule aims to raise the overtime threshold from $684 per week to $1,059 per week, but this threshold could change based on new wage data.

The Updated Davis-Bacon and Related Acts Regulations

One rule that has already gone into effect is the Updated Davis-Bacon and Related Acts Regulations. This rule clarifies and modernizes the implementing regulations of the Davis-Bacon Act and went into effect in October 2023. It has implications for government contractors and some employers who choose to comply with the Act’s prevailing wage and apprenticeship requirements to claim enhanced tax credits under the Inflation Reduction Act.

Achieving the Biden Administration’s Goals

It is anticipated that the WHD will prioritize achieving the Biden Administration’s wage-hour goals before the end of the presidential term. Employers should be prepared to comply with new regulations and consider taking proactive steps to ensure compliance if pending rules become final and binding.