In a letter to Congress, Wage-and-Hour Administrator David Weil yesterday stated that the Department would not extend the 60-day comment period for providing feedback regarding the Department’s proposed rule, indicating that “a comment period of this length . . . will meet the goal . . . of ensuring Department has level of insight from the public needed.” Absent intervention, final regulations implementing the proposed increase in the federal salary basis minimum could be effective as soon as early 2016. These final regulations may differ from the proposed regulations, though the legal effect of such modifications remains open to debate. Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1341 (2013) (Scalia, J. dissenting) (“Auer deference encourages agencies to be vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures . . . Auer is not a logical corollary to Chevron but a dangerous permissions slip for the arrogation of power”); Boose v. Tri-County Metropolitan Transp. Dist. of Oregon, 587 F.3d 997, 1004 (9th Cir. 2009) (“We will not under the guise of deference, engage in an end-run around notice-and-comment rulemaking. Until the Secretary formally promulgates the proposed regulations [the defendant] is not required to follow them”).
Watch this space for continued coverage of the DOL’s rulemaking.