Article by Leah Thayer
This article has been updated to indicate that the survey link was sent by email on August 17 to all NAIS and NBOA members. Schools are encouraged to complete the survey by August 31.
Months after independent schools began their scramble to adjust salaries and schedules in anticipation of a new overtime rule that never took effect, the U.S. Department of Labor wants to hear from the public. NBOA and NAIS, in turn, want independent schools to help them shape a united response on behalf of the industry.
As background, back in July 2015, the Department of Labor under President Obama issued a Notice of Proposed Rulemaking which proposed new Fair Labor Standards Act regulations that would more than double the salary threshold for exempt employees. DOL invited the public to submit comments on the proposed regulations. NBOA and NAIS surveyed member schools for input and submitted comments to the DOL based on survey responses received from 479 independent schools — a 25 percent response rate. 
Despite widespread employer concern about the new threshold, including among many independent schools, in May 2016 DOL issued a final rule that would raise the salary level for exempt employees to $47,476/year for full-year employees. The rule was to take effect December 1, but it was blocked November 22, shortly after the presidential election.
While the fate of the Obama-era regulations remains embroiled in litigation, new Secretary of Labor Acosta under the Trump Administration is clearly considering possible new regulations. On July 25, DOL issued a "request for information" seeking a range of information from the public, including to what extent employers adjusted salaries and/or classifications in anticipation of the 2016 rule, the impact of those adjustments, and whether there should be different salaries based on where an employer is located. While it is not clear what the DOL will do with the information it gathers, “the RFI is an indication that the new Labor Secretary wants to gather data to support any next steps, including any future revisions to the salary or duties tests under the FLSA,” said Grace Lee, NBOA's vice president of legal affairs. That said, the RFI also questions whether a "duties-only test" might be preferable to a salary test, despite the likelihood that a duties test, according to Lee, "would likely be much more difficult to meet."
On behalf of NBOA, Lee worked with Debra Wilson, NAIS general counsel, to develop a survey for member schools to share their experiences and opinions involving the overtime rule. The organizations emailed the survey to one contact at all member schools (including the "prime contact" at NBOA member schools) on August 18; they are encouraged to complete the survey by August 31. NBOA and NAIS will compile results into joint responses to the RFI that they submit by DOL's deadline of September 25.
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