Overtime Proposed Rule Release Planned in May

The U.S. Department of Labor has rescheduled the release of its proposed salary basis threshold rule for May. The Federal Trade Commission has issued a proposed rule that would ban employers from imposing noncompete agreements on their workers. The Equal Employment Opportunity Commission has settled a COVID discrimination case and also published for public comment its draft strategic enforcement plan. The Internal Revenue Service has increased by three cents per mile, the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes.


DOL Plans Release of Overtime Rule in May – In the most recent semi-annual regulatory agenda, the U.S. Department of Labor (DOL) announced that it plans to release in May the proposed salary basis threshold for overtime exemptions under the Fair Labor Standards Act (FLSA) for administrative, executive, and professional employees. DOL had previously planned to release the proposed rule in October 2022. The salary basis threshold was increased in 2019 from $23,660/year to $35,568/year. Marty Walsh, the Secretary of Labor indicated previously that the salary basis threshold is too low and as part of the review, the DOL will consider whether regular and automatic updates are needed. In 2016, the Labor Department under President Obama had proposed a salary basis threshold of $47,476/year, which was invalidated by a District Court and the lawsuit was withdrawn by the Trump Administration.


FTC Proposed Rule Would Ban Noncompete Agreements – The Federal Trade Commission (FTC) has proposed a rule that would ban employers from imposing noncompete agreements on their employees. According to the FTC, this new rule could increase wages by nearly $300 billion annually and expand career opportunities for about 30 million Americans.  Comments on the proposed rule are due by March 10, 2023. According to FTC Chair Lina M. Khan, “Noncompetes block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand.” The FTC cited research showing that noncompete agreements restrict the mobility of impacted workers thus harming competition in the labor markets.

The FTC stated that the proposed rule would apply to employees, independent contractors, and volunteers. Existing noncompete agreements would need to be rescinded and workers informed that they are no longer in effect. The FTC noted that the proposed rule would make it illegal for an employer to:

  • enter into or attempt to enter into a noncompete agreement with a worker;
  • maintain a noncompete agreement with a worker; or
  • represent to a worker, under certain circumstances, that the worker is subject to a noncompete agreement.

EEOC Settles COVID Discrimination Lawsuit – The Equal Employment Opportunity Commission (EEOC) announced that it settled a lawsuit alleging disability discrimination in violation of the Americans with Disabilities Act (ADA) by an employer who denied an employee’s reasonable request to work from home and subsequently fired her. The EEOC reported that in resolving the lawsuit, the employer agreed to a two-year consent decree; will pay the former employee $47,500 in monetary damages; train its employees on the ADA; make changes to its employment policies; and allow the EEOC to monitor how it handles future requests for accommodation.

According to the EEOC’s lawsuit, Ronisha Moncrief worked for ISS Facility Services, Inc. as a health and safety manager. From March 2020 through June 2020, employees were required to work remotely four days per week due to the COVID-19 pandemic. Starting in June 2020, employees were required to return to work onsite full-time. Ms. Moncrief requested an accommodation that would allow her to work remotely two days per week and be allowed frequent breaks while working on-site due to her pulmonary condition, which placed her at greater risk of contracting COVID-19. While the employer allowed other employees in her position to work from home, it denied her request and shortly thereafter terminated her employment. Marcus G. Keegan, EEOC regional attorney for the Atlanta District Office stated, “The ADA requires employers to provide reasonable accommodations to employees with disabilities to ensure those with disabilities have an equal opportunity to work to their full ability”.


EEOC Seeks Comments on Strategic Enforcement Plan – The Equal Employment Opportunity Commission (EEOC) has published for public comment, a draft Strategic Enforcement Plan. Comments on the draft plan must be submitted by February 9, 2023.  When finalized, the plan will set forth the EEOC’s enforcement priorities.


Among the subject matter priorities included in the draft plan are:

  • Eliminating recruitment and hiring barriers.
  • Protecting vulnerable workers and persons from underserved communities from employment discrimination.
  • Addressing selected emerging and developing issues such as qualification standards that discriminate against individuals with disabilities, protecting individuals affected by pregnancy, childbirth and related medical conditions under the Pregnancy Discrimination Act, employment discrimination associated with COVID-19 and other threats to public health, and technology related discrimination.
  • Advancing equal pay for all workers.
  • Preserving access to the legal system focusing on overly broad waivers, releases, non-disclosure agreements or non-disparagement agreements, mandatory arbitration provisions, failure to keep applicant and employee data and records, and retaliatory practices that dissuade employees from exercising their rights.
  • Preventing and remedying systemic harassment including sexual harassment and harassment based on race, disability, age, national origin, religion, color, and sex (including pregnancy, sexual orientation, and gender identity).


    IRS Increases Mileage Rates by Three Cents – The Internal Revenue Service (IRS) advised that the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes increased by three cents to 65.5 cents per mile effective on January 1, 2023. According to the IRS, the standard mileage rate for business use is based on an annual study of the fixed and variable costs of operating an automobile.


    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 an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.