By Jeffrey W. Brecher with Jackson Lewis P.C. & Justin R. Barnes with Jackson Lewis P.C.
Four months after its controversial nominee, David Weil, withdrew his name from contention as Administrator of the Wage and Hour Division (WHD) of the Department of Labor (DOL), the White House has nominated Acting Administrator Jessica Looman to head the post. Prior to joining the DOL as Principal Deputy Administrator of the WHD at the beginning of 2021, Ms. Looman was executive director of the Minnesota building trades coalition. She had been in the position of Acting Administrator since June 2021 but due to regulatory requirements for agency nominees, that title officially has been removed, despite the fact that she will retain all of the same duties while her nomination is pending.
Since Ms. Looman began leading the WHD as Acting Administrator, the Division has rescinded final rules, issued during the previous administration, concerning the joint employer and independent contractor analyses, and has signaled its intent to issue new final rules regarding the independent contractor analysis and eligibility for the executive, administrative, and professional (i.e., the “white collar”) exemptions. Notably, a court subsequently deemed unlawful the DOL’s withdrawal of the independent contractor final rule, and that rule is now in effect unless and until a new final rule is enacted.
Prior to Ms. Looman’s nomination, the Biden Administration tapped Dr. David Weil for the position. Dr. Weil headed the WHD under the Obama Administration and, under his leadership, the DOL published an overtime final rule that would have more than doubled the minimum salary to qualify for the white-collar exemptions. That rule was struck down by a Texas federal judge shortly before going into effect in late 2017 and a new final rule was issued under the Trump Administration, raising the minimum annual salary to a relatively more modest $35,568. It remains to be seen whether, as part of its current rule-making efforts, the WHD will once again seek a substantial increase in the minimum salary required to qualify for these exemptions.
Whether Ms. Looman’s nomination will be taken up by the Senate prior to the midterm elections in November 2022 is in doubt, and those elections certainly could impact the outcome of her nomination. We will continue to monitor and report any updates on both Ms. Looman’s nomination and the status of the new final rules that are likely to be proposed.
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