ASM Comments on Labor's Employee Exemptions Definition's Impact on Research

May 11, 2016

The Honorable Howard A. Shelanski, Ph.D.
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503

RE:

RIN 1235-AA11; Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees; U.S. Department of Labor Wage and Hour Division; Notice of Proposed Rulemaking Published at 80 Fed. Reg. 38516 (July 6, 2015)

Dear Dr. Shelanski:

The American Society for Microbiology (ASM) wishes to provide the following written comments to the above referenced proposed final rule that is under review by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB). The ASM is the single largest life sciences organization with approximately 47,000 members. The mission of ASM is to promote and advance the microbial sciences.

ASM is sympathetic to the goals of the US Department of Labor (DOL) Wage and Hour Division (WHD) to modernize and simplify the regulations found in Part 541 of Title 29 of the Code of Federal Regulations. The provisions in part 541 establish the tests for the executive, administrative, professional, outside sales, and computer employee exemptions established in section 13(a)(1) of the Fair Labor Standards Act (FLSA). Employees who meet these tests are exempt from the minimum wage and overtime requirements of the FLSA. The DOL/WHD has proposed to increase significantly the current salary level test of $455 per week or $23,660 a year to an estimated $970 per week or $50,440 per year.(80 Fed. Reg. at 38517) This unprecedented salary increase would negatively impact medical and other life enhancing research performed at research entities, institutions of higher learning and other non-profit organizations.

Highly educated research professionals would be negatively impacted because they do not earn the equivalent of the proposal salary of $970 per week. A prime example of the detrimental impact of the proposed salary amount is illustrated by the initial stipend of $42,880 per year for postdoctoral research established by the National Institutes of Health (NIH). The proposal exceeds the NIH initial stipend by approximately $7,600 and represents a 17.7 % increase. Furthermore, the research budgets of these entities and higher learning institutions do not have the financial wherewithal, means, or flexibility to increase so dramatically these research stipends to maintain the exempt status of these researchers. This would result in the reclassification as non-exempt of these highly educated researchers or scholars whose salary amount would not meet the anticipated salary level.

This reclassification would be deleterious in several other respects. First, it would impede, restrain and undermine critical research because these researchers and scholars would be classified as non-exempt employees subject to the minimum wage, overtime and recordkeeping provisions of the FLSA. Their research contributes in various ways to improving the quality of life in the United States, as well as around the globe, a goal which the proposed rule ostensibly shares.Yet, reclassification as non-exempt will interfere with the research critical to advances in medicine and other life-enhancing measures because these researchers will be subject to working set schedules, budgetary constraints on overtime costs, and diverting their attention to maintaining records of hours worked instead of concentrating on their research.

Also, a non-exempt classification of these scholars is inconsistent and incongruous with the exempt duties they perform. For example, unlike non-exempt employees, these researchers and scholars perform work that includes the exercise of discretion and independent judgment in matters of significance or possess advanced knowledge in a field of science or learning and which they have earned through prolonged courses of intellectual studies. Their work consists of experiments and research and is not conducive to the same rigid scheduling constraints that govern duties performed by non-exempt employees who are able to start and stop their work at the stroke of a time clock. Scheduling laboratory time and experiments within a required or fixed hourly schedule may be difficult, if not impossible, and the incompatibility of a FLSA non-exempt classification with their professional and scholarly accomplishments may restrain their research and advances.

To avoid these negative consequences, a final rule should include a salary level in the $30,000 to $35,000, or $ 40,000 at most, range which US DOL/WHD supposedly considered as alternatives #2, #3 or #4 which are described in its proposed rule.(80 Fed. Reg. at 38561-38562, and 38582-38583) In addition, the definition of an “employee employed in a bona fide professional capacity”, 29 C.F.R. 541.300, should be revised to include postdoctoral researchers, scientists and scholars.

Thank you for the opportunity to share these comments. Should OIRA be willing, ASM would welcome the opportunity to meet with it to elaborate upon its concerns.

Sincerely,

Lynn W. Enquist, Ph.D., President, American Society for Microbiology
Stefano Bertuzzi, Ph.D., CEO, American Society for Microbiology
Ronald M. Atlas, Ph.D., Public and Scientific Affairs Board