[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1786 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                S. 1786

 To amend the Fair Labor Standards Act of 1938 to establish a minimum 
     salary threshold for bona fide executive, administrative, and 
   professional employees exempt from Federal overtime compensation 
  requirements, and automatically update such threshold every 3 years.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 11, 2019

 Mr. Brown (for himself, Mrs. Murray, Mr. Van Hollen, Ms. Baldwin, Mr. 
   Durbin, Ms. Warren, Mr. Markey, Mr. Sanders, Mrs. Gillibrand, Mr. 
  Whitehouse, Ms. Klobuchar, Ms. Harris, Mr. Schatz, Mr. Cardin, Mr. 
   Wyden, Mr. Merkley, Ms. Cantwell, Mr. Blumenthal, Mr. Booker, Ms. 
Duckworth, and Mr. Casey) introduced the following bill; which was read 
 twice and referred to the Committee on Health, Education, Labor, and 
                                Pensions

_______________________________________________________________________

                                 A BILL


 
 To amend the Fair Labor Standards Act of 1938 to establish a minimum 
     salary threshold for bona fide executive, administrative, and 
   professional employees exempt from Federal overtime compensation 
  requirements, and automatically update such threshold every 3 years.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Restoring Overtime Pay Act of 
2019''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The Fair Labor Standards Act of 1938 (29 U.S.C. 201 et 
        seq.) established overtime compensation requirements for 
        certain employees when they work more than 40 hours in a given 
        workweek.
            (2) Under section 13(a)(1) of such Act, Congress delegated 
        to the Secretary of Labor the authority to define and delimit 
        the terms relating to the exemption for bona fide executive, 
        administrative, and professional employees (commonly known as 
        the ``white collar exemption'').
            (3) For more than 75 years, the Secretary of Labor has 
        exercised its delegated authority to issue regulations that 
        define and delimit the terms relating to the white collar 
        exemption by applying a duties test and applying a minimum 
        compensation level (or salary threshold).
            (4) The Secretary of Labor began utilizing a salary 
        threshold in the initial regulations defining and delimiting 
        the terms relating to the white collar exemption, which were 
        first issued in 1938.
            (5) Congress has long approved the use of a salary 
        threshold by the Secretary of Labor, as demonstrated by the 
        fact that Congress has amended the Fair Labor Standards Act of 
        1938 at least 10 times since 1938 and has not precluded the 
        Secretary from using a salary threshold.
            (6) The salary threshold became woefully out of date and 
        ineffective as a result of not being sufficiently updated to 
        keep pace with a changing economy, as evidenced by the fact 
        that more than 60 percent of all full-time salaried workers 
        earned less than the salary threshold in 1975 and less than 7 
        percent of these workers earned less than the salary threshold 
        in 2016.
            (7) The salary threshold of $455 per week, or $23,660 per 
        year, that was in effect on May 22, 2016, was below the poverty 
        line for a family of 4.
            (8) The Secretary of Labor updated the salary threshold on 
        May 23, 2016, through a final rule entitled ``Defining and 
        Delimiting the Exemptions for Executive, Administrative, 
        Professional, Outside Sales and Computer Employees'' (81 Fed. 
        Reg. 32391) by increasing the salary threshold to the 40th 
        percentile of earnings of full-time salaried employees in the 
        lowest-wage census region, resulting in a salary threshold of 
        $913 per week or $47,476 per year.
            (9) The final rule would benefit more than 13,000,000 
        employees by providing overtime compensation protections to 
        4,200,000 new employees and strengthening overtime compensation 
        protections for 8,900,000 additional employees.
            (10) The Secretary of Labor went through a thorough process 
        in crafting the final rule, seeking public input and conducting 
        extensive economic analysis, including--
                    (A) spending more than a year meeting with more 
                than 200 interested parties to obtain input before 
                issuing the proposed rule in 2015;
                    (B) considering more than 270,000 comments received 
                during the 60-day public comment period on the proposed 
                rule; and
                    (C) making significant changes in response to 
                public input before issuing the final rule.
            (11) The public comments submitted to the Secretary of 
        Labor regarding the proposed rule were overwhelmingly positive 
        and supportive of the rule.
            (12) The increase in the salary threshold, included in the 
        final rule, to the 40th percentile of earnings of full-time 
        salaried employees in the lowest-wage census region, resulting 
        in a threshold of $913 per week or $47,476 per year, was a 
        strong yet measured increase by almost any measure, including 
        as compared to--
                    (A) the higher salary threshold of $970 per week or 
                $50,440 per year, initially put forward by the 
                Secretary of Labor in the proposed rule;
                    (B) the salary threshold of $984 per week or 
                $51,168 per year, which would have fully accounted for 
                the erosion to the value of the salary threshold since 
                1975 due to inflation;
                    (C) the salary threshold of $1,122 per week or 
                $58,344 per year, which would have covered the same 
                share of all salaried workers as were covered in 1975 
                after accounting for changes in the economy; and
                    (D) the salary threshold of $1,327 per week or 
                $69,004 per year, which would have covered the same 
                percentage of all salaried workers as were covered in 
                1975 without accounting for changes in the economy.
            (13) The United States District Court for the Eastern 
        District of Texas erroneously called the authority of the 
        Secretary of Labor under the Fair Labor Standards Act of 1938 
        into question when it issued a preliminary injunction enjoining 
        the Department of Labor from enforcing the final overtime rule.
            (14) The United States District Court for the Eastern 
        District of Texas issued a final decision invalidating the 
        rule, threatening overtime protections for millions of workers.
            (15) On March 7, 2019, the Secretary of Labor proposed to 
        update the salary threshold to $35,308, which would deny 
        overtime pay eligibility to approximately 3,000,000 workers who 
        would otherwise benefit from the higher salary threshold in the 
        2016 final rule.

SEC. 3. MINIMUM SALARY THRESHOLD FOR BONA FIDE EXECUTIVE, 
              ADMINISTRATIVE, AND PROFESSIONAL EMPLOYEES EXEMPT FROM 
              FEDERAL OVERTIME COMPENSATION REQUIREMENTS.

    (a) In General.--Section 13 of the Fair Labor Standards Act of 1938 
(29 U.S.C. 213) is amended--
            (1) in subsection (a)(1)--
                    (A) by inserting ``subsection (k) and'' after 
                ``subject to''; and
                    (B) by inserting ``(except as provided under 
                subsection (k)(2)(C))'' after ``Administrative 
                Procedure Act''; and
            (2) by adding at the end the following:
    ``(k) Minimum Salary Threshold.--
            ``(1) In general.--Beginning on the effective date of the 
        Restoring Overtime Pay Act of 2019, the Secretary shall require 
        that an employee described in subsection (a)(1), as a 
        requirement for exemption under such subsection, be compensated 
        on a salary basis, or equivalent fee basis, within the meaning 
        of such terms in subpart G of part 541 of title 29, Code of 
        Federal Regulations (or any successor regulation), at a rate 
        per week that is not less than the salary threshold under 
        paragraph (2).
            ``(2) Salary threshold.--
                    ``(A) In general.--Subject to subparagraphs (B) and 
                (C), the salary threshold shall be an amount that is 
                equal to the 40th percentile of earnings of full-time 
                salaried workers in the lowest-wage census region, as 
                determined by the Bureau of Labor Statistics based on 
                data from the second quarter of the calendar year 
                preceding the calendar year in which such amount takes 
                effect.
                    ``(B) Increased threshold.--The Secretary may 
                establish, through notice and comment rulemaking under 
                section 553 of title 5, United States Code, a salary 
                threshold that is an amount that--
                            ``(i) is greater than the 40th percentile 
                        of earnings of the full-time salaried workers 
                        described in subparagraph (A); and
                            ``(ii) is calculated based on a data set 
                        and methodology established by the Secretary 
                        that are capable of being updated in accordance 
                        with subparagraph (C).
                    ``(C) Automatic updates.--
                            ``(i) In general.--Not later than 3 years 
                        after the salary threshold first takes effect 
                        under subparagraph (A), and every 3 years 
                        thereafter, or, in the case in which the 
                        Secretary establishes an increased salary 
                        threshold under subparagraph (B), every 3 years 
                        after establishing such increased salary 
                        threshold, the Secretary shall update the 
                        amount of the salary threshold in effect under 
                        subparagraph (A) or (B), as applicable, so that 
                        such amount is equal to--
                                    ``(I) in the case in which the 
                                Secretary does not establish an 
                                increased salary threshold under 
                                subparagraph (B), the 40th percentile 
                                of earnings of full-time salaried 
                                workers in the lowest-wage census 
                                region, as determined by the Bureau of 
                                Labor Statistics based on data from the 
                                second quarter of the calendar year 
                                preceding the calendar year in which 
                                such updated amount is to take effect; 
                                and
                                    ``(II) in the case in which the 
                                Secretary establishes an increased 
                                salary threshold under subparagraph 
                                (B), the greater of--
                                            ``(aa) the 40th percentile 
                                        described in subclause (I); and
                                            ``(bb) the increased salary 
                                        threshold established under 
                                        subparagraph (B), as updated in 
                                        accordance with the data set 
                                        and methodology established by 
                                        the Secretary under 
                                        subparagraph (B)(ii).
                            ``(ii) Nonapplicability of rulemaking.--Any 
                        update described in this subparagraph shall not 
                        be subject to the requirements of notice and 
                        comment rulemaking under section 553 of title 
                        5, United States Code.
                    ``(D) Notice requirement.--Not later than 60 days 
                before a revised salary threshold under this paragraph 
                takes effect, the Secretary shall publish a notice 
                announcing the amount in the Federal Register and on 
                the internet website of the Department of Labor.
            ``(3) Duties test.--The Secretary shall, in addition to the 
        requirement under paragraph (1), continue to require employees 
        to satisfy a duties test, as prescribed by the Secretary, in 
        defining and delimiting the terms described in subsection 
        (a)(1).''.
    (b) Publication of Earnings.--Not later than 21 days after the end 
of each calendar quarter, the Bureau of Labor Statistics shall publish 
on its public website, for each week of such quarter, data on the 
weekly earnings of nonhourly, full-time salaried workers by census 
region (as designated by the Bureau of the Census).
    (c) Effective Date.--This Act, and the amendments made by this Act, 
shall take effect on the first day of the third month that begins after 
the date of enactment of this Act.
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