Attorney General Becerra Denounces Trump Administration’s Proposed Regulation Excluding Millions of Americans from Federal Overtime Protections

Tuesday, May 21, 2019
Contact: (916) 210-6000,

SACRAMENTO – California Attorney General Xavier Becerra today joined a coalition of 15 attorneys general denouncing the Trump Administration’s proposed rule that would potentially exclude millions of Americans from federal overtime protections. Specifically, the proposed rule would significantly expand provisions that exempt certain employees from protections under the Fair Labor Standards Act, including the right to overtime pay. In a comment letter, the Attorneys General urge the U.S. Department of Labor (DOL) to issue a final regulation in line with DOL’s own existing 2016 final rule.

“Again and again, the Trump Administration has shown a callous disregard for the rights of hardworking Americans and good governance,” said Attorney General Becerra. “This move to circumvent protections under the Fair Labor Standards Act is bad for workers and bad for the integrity of our economy. We’ll continue to keep a close eye on this rule that dangerously risks eliminating the overtime pay of millions of Americans.”

Historically, DOL has used three criteria to decide if an employee is exempt from overtime: (1) the employee must be paid a fixed salary (the “salary basis test”); (2) the employee must receive at least a minimum specified salary amount (the “salary level test”); and (3) the employee’s job must primarily involve duties that are executive, administrative, or professional in nature (the “duties test”). The new proposed rule undermines the salary level test by drastically lowering the salary level threshold set in 2016 and making certain employees earning as little as $679 per week ($35,308 per year) potentially ineligible for overtime pay. Under the 2016 rule, employees could not fall under the overtime exemption unless they earned at least $913 per week ($47,476 per year). Under the proposed rule, millions of American workers will be exposed to misclassification as employees who are exempt from overtime. This will also cause state labor law enforcers to rely increasingly on the duties test, which will make labor law enforcement in the states significantly more difficult and result in increased violation of the Fair Labor Standards Act. In addition, the proposed rule would abandon automatic updating of the salary level used to determine exemptions in line with changes in overall economic conditions. Finally, the Attorneys General note that DOL failed to provide any significant analysis that would justify drastically lowering the salary threshold, in violation of the Administrative Procedure Act.

Attorney General Becerra is committed to protecting the rights of workers in California and across the country. Just last week, Attorney General Becerra led a multistate lawsuit opposing the Trump Administration’s final rule undermining collective bargaining rights for Medicaid in-home care workers nationwide. In January, the California Department of Justice joined a multistate comment letter opposing a National Labor Relations Board proposal that would diminish protections for millions of workers. Attorney General Becerra also co-led a coalition of 17 attorneys general in 2018 opposing a Trump Administration rule to allow employers to pocket the tips of certain employees, threatening the loss of up to $5.8 billion of workers’ earned tips. In March, the California Department of Justice, as part of a multistate effort, entered into stipulated judgments with four major fast food companies prohibiting them from including provisions in contracts that make it more difficult for employees to seek better pay and benefits at competing franchises.

A copy of the comment letter is available here.

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