,,ii #aadth ,,congress #b;d ,session ,s4 #bgjg ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #ag1 #bjaf ,mr4 ,scott 7for himself and ,mr4 ,alexander7 introduced the following bill2 which was read twice and referred to the ,committee on ,health1 ,education1 ,labor1 and ,pensions ,a ,,bill ,to require the ,secretary of ,labor to nullify the proposed rule regarding defining and delimiting the exemptions for executive1 administrative1 professional1 outside sales1 and computer employees1 to require the ,secretary of ,labor to conduct a full and complete economic analysis with improved economic data on small businesses1 nonprofit employers1 ,medicare or ,medicaid dependent health care providers1 and small governmental jurisdictions1 and all other employers1 and minimize the impact on such employers1 before promulgating any substantially similar rule1 and to provide a rule of construction regarding the salary threshold exemption under the ,fair ,labor ,standards ,act of #aich1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,protecting ,workplace ,advancement and ,opportunity ,act4 #b4 ,findings ,congress finds the following3 7#a7 ,the proposed rule of the ,department of ,labor entitled ,defining and ,delimiting the ,exemptions for ,executive1 ,administrative1 ,professional1 ,outside ,sales and ,computer ,employees 7#hj ,fed4 ,reg4 #cheaf 7,july #f1 #bjae77 provides a minimum salary requirement that would be-- 7,a7 a #aac percent increase during the first year after the final rule takes effect from the salary threshold in effect on ,february #bi1 #bjaf2 and 7,b7 an increase that would set the ,federal minimum salary threshold #bj percent higher than the minimum salary threshold under any ,state law effective on the date of enactment of this ,act4 7#b7 ,the ,secretary significantly underestimated the cost of compliance with the ,july #f1 #bjae1 proposed rule4 ,public comments calculate such rule will impose financial and non-financial costs substantially higher than those estimated by the ,department4 7#c7 ,according to the ,office of ,advocacy of the ,small ,business ,administration1 the initial regulatory flexibility analysis of the ,july #f1 #bjae1 proposed rule required under section #fjc of title #e1 ,united ,states ,code1 failed to adequately identify the number of small entities affected by such rule and failed to address how such rule would affect regions with lower costs of living and differences in certain industries4 ,on ,september #d1 #bjae1 the ,office of ,advocacy of the ,small ,business ,administration submitted comments to the ,secretary regarding such rule1 including recommendations to-- 7,a7 reanalyze the economic impact of this rule on small businesses1 to provide a more accurate estimate of the small entities impacted by this proposal1 and to include an analysis of industry sub-sectors1 regional differences1 and revenue sizes2 7,b7 reanalyze the number of small non-profit organizations and small governmental jurisdictions 4 4 4 that are affected by this rule and the economic impact of this rule on these entities2 and 7,c7 provide greater transparency with respect to compliance cost data and to utilize data provided in the comment process to accurately estimate the human resources and financial management costs of this regulation4 7#d7 ,the ,secretary did not consider the potential impact of the ,july #f1 #bjae1 proposed rule on workplace flexibility4 ,public comments address concerns that employees who are reclassified from exempt to nonexempt employees may no longer be able to participate in workplace flexibility arrangements and programs4 7#e7 ,the ,secretary did not analyze the potential impact of the ,july #f1 #bjae1 proposed rule on companies that operate in multiple ,states with different costs of living and different salary scales1 and the costs and unique complications for these employers associated with reclassifying thousands of employees in multiple ,states4 7#f7 ,the ,july #f1 #bjae1 proposed rule automatically updates the salary threshold on an annual basis for purposes of defining employees subject to the exemption under section #ac7;a77#a7 of the ,fair ,labor ,standards ,act of #aich 7#bi ,u4,s4,c4 #bac7;a77#a77 for all subsequent years1 contrary to the requirement under such section that the definitions applicable for the exemption shall be defined and delimited from time to time by regulations of the ,secretary4 ,the ,secretary does not have the authority to increase the salary threshold on an annual or other basis without conducting notice and comment rulemaking with respect to each change in accordance with section #eec of title #e1 ,united ,states ,code4 7#g7 ,although not proposed in the ,july #f1 #bjae1 proposed rule1 the ,secretary indicated that changes to the duties tests may be included in the final rule1 without providing for notice and comment regarding the specific proposed revisions4 #c4 ,definitions ,in this ,act3 7#a7 ,department ,the term ,department means the ,department of ,labor4 7#b7 ,july #f1 #bjae1 proposed rule ,the term ,july #f1 #bjae1 proposed rule means the proposed rule of the ,department of ,labor entitled ,defining and ,delimiting the ,exemptions for ,executive1 ,administrative1 ,professional1 ,outside ,sales and ,computer ,employees 7#hj ,fed4 ,reg4 #cheaf 7,july #f1 #bjae77 or the final rule with respect to such proposed rule4 7#c7 ,medicare or ,medicaid dependent health care provider ,the term ,medicare or ,medicaid dependent health care provider means an employer who derives more than #ej percent of its revenue from payments under the ,medicare program under title ,,xviii of the ,social ,security ,act1 a ,state plan under the ,medicaid program under title ,,xix of such ,act1 or both4 7#d7 ,secretary ,the term ,secretary means the ,secretary of ,labor4 7#e7 ,small business2 small entity2 small government jurisdiction2 small organization ,the terms small business1 small entity1 small government jurisdiction1 and small organization have the meanings given such terms in section #fja of title #e1 ,united ,states ,code4 7#f7 ,substantially similar rule ,the term substantially similar rule means any rule or proposed rule that is a reissuance of the ,july #f1 #bjae1 proposed rule in substantially the same form as such rule1 or is the issuance of a new rule or proposed rule that is substantially the same as the ,july #f1 #bjae1 rule1 including any rule that implements the provisions of section #ac7;a77#a7 of the ,fair ,labor ,standards ,act of #aich 7#bi ,u4,s4,c4 #bac7;a77#a774 #d4 ,conditions precedent for substantially similar rules 7a7 ,enforcement 7#a7 ,in general ,beginning on the date of enactment of this ,act1 the ,july #f1 #bjae1 proposed rule shall cease to have any force or effect4 7#b7 ,final rule ,in the case that the ,july #f1 #bjae1 proposed rule is a final rule on the date of enactment of this ,act-- 7,a7 the ,secretary shall not enforce the final rule based on conduct occurring before such date of enactment2 7,b7 an employee shall not have any right of action against an employer for the employer's failure to comply with the final rule at any time prior to such date of enactment2 7,c7 any regulations that were amended by such final rule shall be restored and revived as if the final rule had never taken effect2 and 7,d7 nothing in this ,act shall be construed to create a right of action for an employer against an employee for the recoupment of any payments made to the employee prior to the date of enactment of this ,act that were in compliance with such final rule4 7b7 ,conditions for substantially similar rules 7#a7 ,in general ,the ,secretary may promulgate any substantially similar rule1 subject to paragraph 7#c71 only if the ,secretary has completed each action required under paragraph 7#b74 7#b7 ,requirements for substantially similar rules ,the actions required under this paragraph are the following3 7,a7 ,the ,secretary shall conduct an analysis of the impact of the substantially similar rule1 including an initial regulatory flexibility analysis under section #fjc of title #e1 ,united ,states ,code and assessments under clauses 7i7 through 7iii7 of section #f7;a77#c77;,c7 of ,executive ,order #abhff 7#e ,u4,s4,c4 #fja note1 relating to regulatory planning and review7 to be provided to the ,administrator of the ,office of ,information and ,regulatory ,affairs in accordance with such section1 and that-- 7i7 accurately identifies the number of affected small entities by using specific data points from the most recent publication of the ,statistics of ,u4,s4 ,businesses by the ,bureau of the ,census2 7ii7 addresses regional1 ,state1 county 7if applicable71 metropolitan1 and nonmetropolitan salary and cost of living differences2 7iii7 provides an analysis of any substantially similar rule1 which shall include the percentile of full-time salaried workers affected1 and such analysis shall be disaggregated by-- 7,i7 ,state2 7,,ii7 industry subsector2 7,,iii7 small organizations2 7,,iv7 small government jurisdictions1 including further disaggregation by school district2 7,v7 nonprofit organizations2 7,,vi7 ,medicare or ,medicaid dependent health care providers2 and 7,,vii7 small businesses2 7iv7 provides an analysis of management and human resource costs for all employers1 including costs associated with changing human resource systems1 reclassifying employees1 and extra hours spent scheduling employees2 7v7 provides an analysis of the impact on lower-wage industries1 including by geographic area2 7vi7 provides an analysis of all non-financial costs1 including impact on employment1 workplace flexibility1 employee benefit structure for exempt and nonexempt workers1 career advancement opportunities1 new business formation1 business termination1 and loss of market share to foreign competition2 and 7vii7 includes a complete description of any significant alternative as described in section #fjc7;c7 of title #e1 ,united ,states ,code1 to the substantially similar rule4 7,b7 ,the ,secretary shall publish not less than one small entity compliance guide under section #bab of the ,small ,business ,regulatory ,enforcement ,fairness ,act of #aiif 7#e ,u4,s4,c4 #fja note7 to assist small entities in complying with the substantially similar rule4 7,c7 ,the ,secretary shall provide notice of the substantially similar rule in the ,unified ,agenda of ,federal ,regulatory and ,deregulatory ,actions1 compiled by the ,regulatory ,information ,service ,center of the ,general ,services ,administration4 7,d7 ,the ,secretary shall ensure that the effective date for any final rule with respect to the substantially similar rule shall not be less than #a year after the publication of such final rule in the ,federal ,register4 7,e7 ,the ,secretary shall comply with the notice and comment requirements under section #eec of title #e1 ,united ,states ,code1 and provide a comment period of not less than #abj days4 7#c7 ,automatic updates ,any substantially similar rule promulgated by the ,secretary shall not contain any automatic updates to the salary threshold for purposes of the exemption under section #ac7;a77#a7 of the ,fair ,labor ,standards ,act of #aich 7#bi ,u4,s4,c4 #bac7;a77#a771 in accordance with section #e4 #e4 ,rule of construction ,the requirement under section #ac7;a77#a7 of the ,fair ,labor ,standards ,act of #aich 7#bi ,u4,s4,c4 #bac7;a77#a77 that the definitions applicable for the exemption under such section be defined and delimited from time to time by regulations of the ,secretary shall be construed to-- 7#a7 require the ,secretary to issue a new rule through notice and comment rulemaking in accordance with section #eec of title #e1 ,united ,states ,code1 for each change in any salary threshold under such section #ac7;a77#a7 proposed by the ,secretary2 and 7#b7 exclude any rule that would result in changes to any salary threshold under such section for multiple time periods1 including through any automatic updating procedure4 #f4 ,requirements for duties tests ,the ,secretary may not promulgate any final rule that includes any provision revising any of the duties tests provided in part #eda of title #bi1 ,code of ,federal ,regulations 7or any successor regulation71 for exemption under section #ac7;a77#a7 of the ,fair ,labor ,standards ,act of #aich 7#bi ,u4,s4,c4 #bac7;a77#a77 unless specific regulatory text for the provision was proposed in the proposed rule4