II 

116TH CONGRESS 

1ST SESSION S. 1786 

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 

JUNE 11, 2019 

Mr. BROWN (for himself, Mrs. MURRAY, Mr. VAN HOLLEN, Ms. BALDWIN, 

Mr. DURBIN, Ms. WARREN, Mr. MARKEY, Mr. SANDERS, Mrs. GILLIBRAND, Mr. WHITEHOUSE, Ms. KLOBUCHAR, Ms. HARRIS, Mr. SCHATZ, 

Mr. CARDIN, Mr. WYDEN, Mr. MERKLEY, Ms. CANTWELL, Mr. 

BLUMENTHAL, Mr. BOOKER, Ms. DUCKWORTH, and Mr. CASEY) 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 2019’’. 


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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 

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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 (15) On March 7, 2019, the Secretary of Labor 

6 proposed to update the salary threshold to $35,308, 

7 which would deny overtime pay eligibility to approxi8 mately 3,000,000 workers who would otherwise ben9 efit from the higher salary threshold in the 2016 

10 final rule. 

11 SEC. 3. MINIMUM SALARY THRESHOLD FOR BONA FIDE EX12 ECUTIVE, ADMINISTRATIVE, AND PROFES13 SIONAL EMPLOYEES EXEMPT FROM FEDERAL 

14 OVERTIME COMPENSATION REQUIREMENTS. 

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

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

17 (1) in subsection (a)(1)— 

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

19 ‘‘subject to’’; and 

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

21 under subsection (k)(2)(C))’’ after ‘‘Administra22 tive Procedure Act’’; and 

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

24 ‘‘(k) MINIMUM SALARY THRESHOLD.— 


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

2 date of the Restoring Overtime Pay Act of 2019, the 

3 Secretary shall require that an employee described in 

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

5 under such subsection, be compensated on a salary 

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

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

8 Code of Federal Regulations (or any successor regu9 lation), at a rate per week that is not less than the 

10 salary threshold under paragraph (2). 

11 ‘‘(2) SALARY THRESHOLD.— 

12 ‘‘(A) IN GENERAL.—Subject to subpara13 graphs (B) and (C), the salary threshold shall 

14 be an amount that is equal to the 40th per15 centile of earnings of full-time salaried workers 

16 in the lowest-wage census region, as determined 

17 by the Bureau of Labor Statistics based on 

18 data from the second quarter of the calendar 

19 year preceding the calendar year in which such 

20 amount takes effect. 

21 ‘‘(B) INCREASED THRESHOLD.—The Sec22 retary may establish, through notice and com23 ment rulemaking under section 553 of title 5, 

24 United States Code, a salary threshold that is 

25 an amount that— 


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1 ‘‘(i) is greater than the 40th per2 centile of earnings of the full-time salaried 

3 workers described in subparagraph (A); 

4 and 

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

6 and methodology established by the Sec7 retary that are capable of being updated in 

8 accordance with subparagraph (C). 

9 ‘‘(C) AUTOMATIC UPDATES.— 

10 ‘‘(i) IN GENERAL.—Not later than 3 

11 years after the salary threshold first takes 

12 effect under subparagraph (A), and every 

13 3 years thereafter, or, in the case in which 

14 the Secretary establishes an increased sal15 ary threshold under subparagraph (B), 

16 every 3 years after establishing such in17 creased salary threshold, the Secretary 

18 shall update the amount of the salary 

19 threshold in effect under subparagraph (A) 

20 or (B), as applicable, so that such amount 

21 is equal to— 

22 ‘‘(I) in the case in which the Sec23 retary does not establish an increased 

24 salary threshold under subparagraph 

25 (B), the 40th percentile of earnings of 


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1 full-time salaried workers in the low2 est-wage census region, as determined 

3 by the Bureau of Labor Statistics 

4 based on data from the second quar5 ter of the calendar year preceding the 

6 calendar year in which such updated 

7 amount is to take effect; and 

8 ‘‘(II) in the case in which the 

9 Secretary establishes an increased sal10 ary threshold under subparagraph 

11 (B), the greater of— 

12 ‘‘(aa) the 40th percentile de13 scribed in subclause (I); and 

14 ‘‘(bb) the increased salary 

15 threshold established under sub16 paragraph (B), as updated in ac17 cordance with the data set and 

18 methodology established by the 

19 Secretary under subparagraph 

20 (B)(ii). 

21 ‘‘(ii) NONAPPLICABILITY OF RULE22 MAKING.—Any update described in this 

23 subparagraph shall not be subject to the 

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1 making under section 553 of title 5, 

2 United States Code. 

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

4 than 60 days before a revised salary threshold 

5 under this paragraph takes effect, the Secretary 

6 shall publish a notice announcing the amount in 

7 the Federal Register and on the internet 

8 website of the Department of Labor. 

9 ‘‘(3) DUTIES TEST.—The Secretary shall, in 

10 addition to the requirement under paragraph (1), 

11 continue to require employees to satisfy a duties 

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

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

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

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

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

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

18 of nonhourly, full-time salaried workers by census region 

19 (as designated by the Bureau of the Census). 

20 (c) EFFECTIVE DATE.—This Act, and the amend21 ments made by this Act, shall take effect on the first day 

22 of the third month that begins after the date of enactment 

23 of this Act. 

Æ 


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