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DOL Questions About Duties Tests Should Concern Employers (SHRM)

One of the most disconcerting things about the DOL's proposed rule release was that it failed to provide any real clarity on its stance regarding the job duties test.  Rather than set forth concrete proposed changes for comment, the DOL asked a series of questions on whether it should in fact modify the job duties test, and if so, how.  The DOL took this approach even though it just finished an extensive “listening tour” with relevant stakeholders asking these very same questions.  And as I said to Allen Smith of SHRM Online, who quoted me in an article entitled "DOL Questions About Duties Tests Should Concern Employers," while the DOL provided us with the opportunity to "respond" to these questions over the next couple of months, it can thereafter decide to put any changes to the job duties test into the final rule without allowing us to formally comment on them.  In other words, the DOL appears to be short-circuiting the notice and comment period requirement.  Perhaps the DOL will not change the job duties test after all, or at least not yet, but I certainly came away with an uneasy feeling after finishing my reading of the proposed rule.  Stay tuned...

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