II 

115TH CONGRESS 

1ST SESSION S. 2177 

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 

NOVEMBER 30, 2017 

Mr. BROWN (for himself, Mrs. MURRAY, Ms. BALDWIN, Ms. WARREN, Mrs. 

GILLIBRAND, Mr. DURBIN, Mr. MERKLEY, Mr. BOOKER, Mr. MARKEY, 

Mr. WHITEHOUSE, Mr. FRANKEN, and Ms. HARRIS) 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Restoring Overtime 

5 Pay Act of 2017’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) The Fair Labor Standards Act of 1938 (29 

4 U.S.C. 201 et seq.) established overtime compensa5 tion requirements for certain employees when they 

6 work more than 40 hours in a given workweek. 

7 (2) Under section 13(a)(1) of such Act, Con8 gress delegated to the Secretary of Labor the au9 thority to define and delimit the terms relating to 

10 the exemption for bona fide executive, administra11 tive, and professional employees (commonly known 

12 as the ‘‘white collar exemption’’). 

13 (3) For more than 75 years, the Secretary of 

14 Labor has exercised its delegated authority to issue 

15 regulations that define and delimit the terms relat16 ing to the white collar exemption by applying a du17 ties test and applying a minimum compensation level 

18 (or salary threshold). 

19 (4) The Secretary of Labor began utilizing a 

20 salary threshold in the initial regulations defining 

21 and delimiting the terms relating to the white collar 

22 exemption, which were first issued in 1938. 

23 (5) Congress has long approved the use of a 

24 salary threshold by the Secretary of Labor, as dem25 onstrated by the fact that Congress has amended the 

26 Fair Labor Standards Act of 1938 at least 10 times 


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1 since 1938 and has not precluded the Secretary 

2 from using a salary threshold. 

3 (6) The salary threshold became woefully out of 

4 date and ineffective as a result of not being suffi5 ciently updated to keep pace with a changing econ6 omy, as evidenced by the fact that more than 60 

7 percent of all full-time salaried workers earned less 

8 than the salary threshold in 1975 and less than 7 

9 percent of these workers earned less than the salary 

10 threshold in 2016. 

11 (7) The salary threshold of $455 per week, or 

12 $23,660 per year, that was in effect on May 22, 

13 2016, was below the poverty line for a family of 4. 

14 (8) The Secretary of Labor updated the salary 

15 threshold on May 23, 2016, through a final rule en16 titled ‘‘Defining and Delimiting the Exemptions for 

17 Executive, Administrative, Professional, Outside 

18 Sales and Computer Employees’’ (81 Fed. Reg. 

19 32391) by increasing the salary threshold to the 

20 40th percentile of earnings of full-time salaried em21 ployees in the lowest-wage Census Region, resulting 

22 in a salary threshold of $913 per week or $47,476 

23 per year. 

24 (9) The final rule would benefit more than 

25 13,000,000 employees by providing overtime comVerDate Sep 11 2014 03:32 Dec 01, 2017 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2177.IS S2177

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1 pensation protections to 4,200,000 new employees 

2 and strengthening overtime compensation protec3 tions for 8,900,000 additional employees. 

4 (10) The Secretary of Labor went through a 

5 thorough process in crafting the final rule, seeking 

6 public input and conducting extensive economic anal7 ysis, including— 

8 (A) spending more than a year meeting 

9 with more than 200 interested parties to obtain 

10 input before issuing the proposed rule in 2015; 

11 (B) considering more than 270,000 com12 ments received during the 60-day public com13 ment period on the proposed rule; and 

14 (C) making significant changes in response 

15 to public input before issuing the final rule. 

16 (11) The public comments submitted to the 

17 Secretary of Labor regarding the proposed rule were 

18 overwhelmingly positive and supportive of the rule. 

19 (12) The increase in the salary threshold, in20 cluded in the final rule, to the 40th percentile of 

21 earnings of full-time salaried employees in the low22 est-wage Census Region, resulting in a threshold of 

23 $913 per week or $47,476 per year, was a strong 

24 yet measured increase by almost any measure, in25 cluding as compared to— 


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1 (A) the higher salary threshold of $970 per 

2 week or $50,440 per year, initially put forward 

3 by the Secretary of Labor in the proposed rule; 

4 (B) the salary threshold of $984 per week 

5 or $51,168 per year, which would have fully ac6 counted for the erosion to the value of the sal7 ary threshold since 1975 due to inflation; 

8 (C) the salary threshold of $1,122 per 

9 week or $58,344 per year, which would have 

10 covered the same share of all salaried workers 

11 as were covered in 1975 after accounting for 

12 changes in the economy; and 

13 (D) the salary threshold of $1,327 per 

14 week or $69,004 per year, which would have 

15 covered the same percentage of all salaried 

16 workers as were covered in 1975 without ac17 counting for changes in the economy. 

18 (13) The United States District Court for the 

19 Eastern District of Texas erroneously called the au20 thority of the Secretary of Labor under the Fair 

21 Labor Standards Act of 1938 into question when it 

22 issued a preliminary injunction enjoining the De23 partment of Labor from enforcing the final overtime 

24 rule. 


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1 (14) The United States District Court for the 

2 Eastern District of Texas issued a final decision in3 validating the rule, threatening overtime protections 

4 for millions of workers. 

5 SEC. 3. MINIMUM SALARY THRESHOLD FOR BONA FIDE EX6 ECUTIVE, ADMINISTRATIVE, AND PROFES7 SIONAL EMPLOYEES EXEMPT FROM FEDERAL 

8 OVERTIME COMPENSATION REQUIREMENTS. 

9 (a) MINIMUM SALARY THRESHOLD FOR BONA FIDE

10 EXECUTIVE, ADMINISTRATIVE, AND PROFESSIONAL EM11 PLOYEES.—Section 13 of the Fair Labor Standards Act 

12 of 1938 (29 U.S.C. 213) is amended— 

13 (1) in subsection (a)(1)— 

14 (A) by inserting ‘‘subsection (k) and’’ after 

15 ‘‘subject to’’; and 

16 (B) by inserting ‘‘(except as provided 

17 under subsection (k)(3)(C))’’ after ‘‘Administra18 tive Procedure Act’’; and 

19 (2) by adding at the end the following: 

20 ‘‘(k) MINIMUM SALARY THRESHOLD.— 

21 ‘‘(1) IN GENERAL.—Beginning on the effective 

22 date of the Restoring Overtime Pay Act of 2017, the 

23 Secretary shall require that an employee described in 

24 subsection (a)(1), as a requirement for exemption 

25 under such subsection, be compensated on a salary 


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1 basis, or equivalent fee basis, within the meaning of 

2 such terms in subpart G of part 541 of title 29, 

3 Code of Federal Regulations (or any successor regu4 lation), at a rate per week that is not less than the 

5 salary threshold under paragraph (2). 

6 ‘‘(2) SALARY THRESHOLD.— 

7 ‘‘(A) IN GENERAL.—The salary threshold 

8 shall be an amount that, subject to subpara9 graph (B), is equal to the 40th percentile of 

10 earnings of full-time salaried workers in the 

11 lowest-wage Census Region as determined by 

12 the Bureau of Labor Statistics in accordance 

13 with subparagraph (C) and as updated under 

14 paragraph (3). 

15 ‘‘(B) INCREASED THRESHOLD.—The Sec16 retary may establish, through notice and com17 ment rule making under section 553 of title 5, 

18 United States Code, a salary threshold that is 

19 an amount based on a rate that is greater than 

20 the rate described in subparagraph (A) as de21 termined by the Bureau of Labor Statistics in 

22 accordance with subparagraph (C) and as up23 dated under paragraph (3). 

24 ‘‘(C) AMOUNT DETERMINATIONS.—The 

25 amount of the salary threshold determined 


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1 under subparagraph (A) or (B) shall be based 

2 on data from the second quarter of the year 

3 preceding the effective date of such amount. 

4 ‘‘(3) AUTOMATIC UPDATES.— 

5 ‘‘(A) IN GENERAL.—The Secretary shall 

6 update the amount of the salary threshold 

7 under paragraph (2) every 3 years so that such 

8 amount is based on data from the second quar9 ter of the year preceding the effective date of 

10 the update. 

11 ‘‘(B) PUBLICATION OF NOTICE.—Not later 

12 than 60 days before the effective date of any 

13 update under subparagraph (A), the Secretary 

14 shall publish, in the Federal Register and on 

15 the internet website of the Department of 

16 Labor, a notice announcing the update. 

17 ‘‘(C) NONAPPLICABILITY OF RULE MAKING

18 REQUIREMENTS.—Any update described in this 

19 paragraph shall not be subject to the require20 ments for notice and comment rule making 

21 under section 553 of title 5, United States 

22 Code. 

23 ‘‘(4) DUTIES TEST.—The Secretary shall, in 

24 addition to the requirement under paragraph (1), 

25 continue to require employees to satisfy a duties 


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1 test, as prescribed by the Secretary, in defining and 

2 delimiting the terms described in subsection (a)(1).’’. 

3 (b) EFFECTIVE DATE.—This Act, and the amend4 ments made by this Act, shall take effect on the date that 

5 is 60 days after the date of enactment of this Act. 

Æ 


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