II 

118TH CONGRESS 

1ST SESSION S. 1041 

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 each year, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 29, 2023 

Mr. BROWN (for himself, Mr. SCHUMER, Mr. SANDERS, Ms. BALDWIN, Mr. 

BLUMENTHAL, Mr. BOOKER, Ms. CANTWELL, Mr. CASEY, Ms. 

DUCKWORTH, Mr. DURBIN, Mr. LUJA ́N, Mr. MARKEY, Mr. MERKLEY, 

Mr. MURPHY, Mrs. MURRAY, Mr. PADILLA, Mr. REED, Mr. SCHATZ, Ms. 

WARREN, and Mr. WYDEN) 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 each year, and for other 

purposes. 

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


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1 SECTION 1. SHORT TITLE. 

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

3 Pay Act of 2023’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

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

7 U.S.C. 201 et seq.) established overtime compensa8 tion requirements for certain employees when they 

9 work more than 40 hours in a given workweek. 

10 (2) Under section 13(a)(1) of such Act, Con11 gress delegated to the Secretary of Labor the au12 thority to define and delimit the terms relating to 

13 the exemption for bona fide executive, administra14 tive, and professional employees (commonly known 

15 as the ‘‘white-collar exemption’’). 

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

17 Labor has exercised the Secretary’s delegated au18 thority to issue regulations that define and delimit 

19 the terms relating to the white-collar exemption by 

20 applying a duties test and applying a minimum com21 pensation level (or salary threshold). 

22 (4) The Secretary of Labor began utilizing a 

23 salary threshold in the initial regulations defining 

24 and delimiting the terms relating to the white-collar 

25 exemption, which were first issued in 1938. 


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

2 salary threshold by the Secretary of Labor, as dem3 onstrated by the fact that Congress has amended the 

4 Fair Labor Standards Act of 1938 at least 10 times 

5 since 1938 and has not precluded the Secretary 

6 from using a salary threshold. 

7 (6) The salary threshold became woefully out of 

8 date and ineffective as a result of not being suffi9 ciently updated to keep pace with the changing econ10 omy, as evidenced by the fact that 63 percent of all 

11 full-time salaried workers were guaranteed overtime 

12 pay under section 7 of the Fair Labor Standards 

13 Act of 1938 based on their salaries in 1975 while, 

14 in 2022, less than 15 percent of all full-time salaried 

15 workers are guaranteed such overtime pay under the 

16 overtime rule promulgated on September 27, 2019. 

17 (7) Weak overtime protections also hurt the 

18 many workers who are forced into part-time jobs but 

19 need full-time jobs to support themselves and their 

20 families. When employers can no longer overwork 

21 employees who are exempt from overtime pay be22 cause of lax standards, they will be forced to spread 

23 work and hours across their workforce. Restoring 

24 overtime protections is especially important in 2023, 

25 as the economy of the United States is still recovVerDate Sep 11 2014 21:29 Apr 07, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1041.IS S1041

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1 ering from the pandemic and many workers report 

2 their employers demanding excessive hours. 

3 (8) In 2015, when the Department of Labor 

4 proposed an increase to the overtime salary thresh5 old rule under the Obama Administration, it found 

6 that the historic range of the overtime salary thresh7 old under the Fair Labor Standards Act of 1938 ran 

8 from approximately the 35th to the 55th percentile 

9 of weekly earnings for all full-time salaried workers. 

10 By phasing the overtime salary threshold back up to 

11 the 55th percentile of earnings of full-time salaried 

12 workers nationally—which after adjusting for infla13 tion is projected to translate to an annualized 

14 amount of $73,551 in 2021 and $82,745 by 2026 

15 (roughly the level of the boldest State overtime 

16 threshold increase)—the United States can restore 

17 overtime protections to historic levels. 

18 SEC. 3. MINIMUM SALARY THRESHOLD FOR BONA FIDE EX19 ECUTIVE, ADMINISTRATIVE, AND PROFES20 SIONAL EMPLOYEES EXEMPT FROM FEDERAL 

21 OVERTIME COMPENSATION REQUIREMENTS. 

22 (a) IN GENERAL.—Section 13 of the Fair Labor 

23 Standards Act of 1938 (29 U.S.C. 213) is amended— 

24 (1) in subsection (a)(1)— 


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

2 ‘‘subject to’’; and 

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

4 under subsection (k)(2)(C))’’ after ‘‘Administra5 tive Procedure Act’’; and 

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

7 ‘‘(k) MINIMUM SALARY THRESHOLD.— 

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

9 date of the Restoring Overtime Pay Act of 2023, the 

10 Secretary shall require that an employee described in 

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

12 under such subsection, be compensated on a salary 

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

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

15 Code of Federal Regulations (or any successor regu16 lation), at a rate per week that is not less than the 

17 weekly rate of the applicable annualized salary 

18 threshold under paragraph (2). 

19 ‘‘(2) SALARY THRESHOLD.— 

20 ‘‘(A) IN GENERAL.—Subject to subpara21 graphs (B) and (C), the applicable annualized 

22 salary threshold shall be— 

23 ‘‘(i) $45,000, beginning on the effec24 tive date of the Restoring Overtime Pay 

25 Act of 2023; 


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1 ‘‘(ii) $55,000, beginning on January 

2 1, 2024; 

3 ‘‘(iii) $65,000, beginning on January 

4 1, 2025; 

5 ‘‘(iv) $75,000, beginning on January 

6 1, 2026; and 

7 ‘‘(v) beginning on January 1, 2027, 

8 an annualized amount that is equal to the 

9 rate of the 55th percentile of weekly earn10 ings of full-time salaried workers nation11 ally, as determined by the Bureau of Labor 

12 Statistics based on data from the second 

13 quarter of 2026. 

14 ‘‘(B) INCREASED THRESHOLD.—The Sec15 retary may establish, through notice and com16 ment rulemaking under section 553 of title 5, 

17 United States Code, a salary threshold that is 

18 a rate that— 

19 ‘‘(i) is greater than the applicable 

20 annualized salary threshold under subpara21 graph (A); and 

22 ‘‘(ii) is calculated based on a data set 

23 and methodology established by the Sec24 retary that are capable of being updated in 

25 accordance with subparagraph (C). 


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1 ‘‘(C) AUTOMATIC UPDATES.— 

2 ‘‘(i) IN GENERAL.—Not later than 1 

3 year after the salary threshold first takes 

4 effect under subparagraph (A)(v), and an5 nually thereafter, or, in the case in which 

6 the Secretary establishes an increased sal7 ary threshold under subparagraph (B), an8 nually after establishing such increased 

9 salary threshold, the Secretary shall up10 date the rate of the salary threshold in ef11 fect under subparagraph (A)(v) or (B), as 

12 applicable, so that such rate is equal to— 

13 ‘‘(I) in the case in which the Sec14 retary does not establish an increased 

15 salary threshold under subparagraph 

16 (B), the 55th percentile of weekly 

17 earnings of full-time salaried workers 

18 nationally, as determined by the Bu19 reau of Labor Statistics based on data 

20 from the second quarter of the cal21 endar year preceding the calendar 

22 year in which such updated amount is 

23 to take effect; and 

24 ‘‘(II) in the case in which the 

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1 ary threshold under subparagraph 

2 (B), the greater of— 

3 ‘‘(aa) the 55th percentile de4 scribed in subclause (I); and 

5 ‘‘(bb) the increased salary 

6 threshold established under sub7 paragraph (B), as updated in ac8 cordance with the data set and 

9 methodology established by the 

10 Secretary under subparagraph 

11 (B)(ii). 

12 ‘‘(ii) NONAPPLICABILITY OF RULE13 MAKING.—Section 553 of title 5, United 

14 States Code, shall not apply to any update 

15 described in this subparagraph. 

16 ‘‘(D) NOTICE REQUIREMENT.—Not later 

17 than 60 days before a revised salary threshold 

18 under this paragraph takes effect, the Secretary 

19 shall publish a notice announcing the amount in 

20 the Federal Register and on the internet 

21 website of the Department of Labor.’’. 

22 (b) PUBLICATION OF EARNINGS.—Not later than 21 

23 days after the end of each calendar quarter, the Bureau 

24 of Labor Statistics shall publish on its public website, for 

25 each week of such quarter, data on the weekly earnings 


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1 of full-time salaried workers by census region (as des2 ignated by the Bureau of the Census). 

3 SEC. 4. NONEXEMPT DUTIES LIMIT FOR BONA FIDE EXECU4 TIVE, ADMINISTRATIVE, OR PROFESSIONAL 

5 EMPLOYEES. 

6 Section 13(a)(1) of the Fair Labor Standards Act of 

7 1938 (29 U.S.C. 213), as amended in section 3(a)(1), is 

8 further amended— 

9 (1) by striking ‘‘of a retail or service establish10 ment shall not’’ and inserting ‘‘shall’’; 

11 (2) by striking ‘‘because of’’ and all that follows 

12 through ‘‘administrative activities,’’; 

13 (3) by striking ‘‘less than 40’’ and inserting 

14 ‘‘not less than 20’’; and 

15 (4) by striking ‘‘such activities’’ and inserting 

16 ‘‘activities not directly or closely related to the per17 formance of executive or administrative activities’’. 

18 SEC. 5. EFFECTIVE DATE. 

19 This Act, and the amendments made by this Act, 

20 shall take effect on the first day of the third month that 

21 begins after the date of enactment of this Act. 

Æ 


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