text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Protecting Workplace Advancement and 
  Opportunity Act''.
  
  SEC. 2. FINDINGS.
  
      Congress finds the following:
              (1) The proposed rule of the Department of Labor entitled 
          ``Defining and Delimiting the Exemptions for Executive, 
          Administrative, Professional, Outside Sales and Computer 
          Employees'' (80 Fed. Reg. 38516 (July 6, 2015)) provides a 
          minimum salary requirement that would be--
                      (A) a 113 percent increase during the first year 
                  after the final rule takes effect from the salary 
                  threshold in effect on February 29, 2016; and
                      (B) an increase that would set the Federal minimum 
                  salary threshold 20 percent higher than the minimum 
                  salary threshold under any State law effective on the 
                  date of enactment of this Act.
              (2) The Secretary significantly underestimated the cost of 
          compliance with the July 6, 2015, proposed rule. Public 
          comments calculate such rule will impose financial and non-
          financial costs substantially higher than those estimated by 
          the Department.
              (3) According to the Office of Advocacy of the Small 
          Business Administration, the initial regulatory flexibility 
          analysis of the July 6, 2015, proposed rule required under 
          section 603 of title 5, United States Code, failed to 
          adequately identify the number of small entities affected by 
          such rule and failed to address how such rule would affect 
          regions with lower costs of living and differences in certain 
          industries. On September 4, 2015, the Office of Advocacy of the 
          Small Business Administration submitted comments to the 
          Secretary regarding such rule, including recommendations to--
                      (A) reanalyze ``the economic impact of this rule on 
                  small businesses'', to ``provide a more accurate 
                  estimate of the small entities impacted by this 
                  proposal'', and to ``include an analysis of industry 
                  sub-sectors, regional differences, and revenue sizes'';
                      (B) reanalyze ``the number of small non-profit 
                  organizations and small governmental jurisdictions . . 
                  . that are affected by this rule and the economic 
                  impact of this rule on these entities''; and
                      (C) provide greater transparency with respect to 
                  ``compliance cost data'' and to ``utilize data provided 
                  in the comment process to accurately estimate the human 
                  resources and financial management costs of this 
                  regulation''.
              (4) The Secretary did not consider the potential impact of 
          the July 6, 2015, proposed rule on workplace flexibility. 
          Public comments address concerns that employees who are 
          reclassified from exempt to nonexempt employees may no longer 
          be able to participate in workplace flexibility arrangements 
          and programs.
              (5) The Secretary did not analyze the potential impact of 
          the July 6, 2015, proposed rule on companies that operate in 
          multiple States with different costs of living and different 
          salary scales, and the costs and unique complications for these 
          employers associated with reclassifying thousands of employees 
          in multiple States.
              (6) The July 6, 2015, proposed rule automatically updates 
          the salary threshold on an annual basis for purposes of 
          defining employees subject to the exemption under section 
          13(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
          213(a)(1)) for all subsequent years, contrary to the 
          requirement under such section that the definitions applicable 
          for the exemption shall be ``defined and delimited from time to 
          time by regulations of the Secretary''. The Secretary does not 
          have the authority to increase the salary threshold on an 
          annual or other basis without conducting notice and comment 
          rulemaking with respect to each change in accordance with 
          section 553 of title 5, United States Code.
              (7) Although not proposed in the July 6, 2015, proposed 
          rule, the Secretary indicated that changes to the duties tests 
          may be included in the final rule, without providing for notice 
          and comment regarding the specific proposed revisions.
  
  SEC. 3. DEFINITIONS.
  
      In this Act:
              (1) Department.--The term ``Department'' means the 
          Department of Labor.
              (2) July 6, 2015, proposed rule.--The term ``July 6, 2015, 
          proposed rule'' means the proposed rule of the Department of 
          Labor entitled ``Defining and Delimiting the Exemptions for 
          Executive, Administrative, Professional, Outside Sales and 
          Computer Employees'' (80 Fed. Reg. 38516 (July 6, 2015)) or the 
          final rule with respect to such proposed rule.
              (3) Medicare or medicaid dependent health care provider.--
          The term ``Medicare or Medicaid dependent health care 
          provider'' means an employer who derives more than 50 percent 
          of its revenue from payments under the Medicare program under 
          title XVIII of the Social Security Act, a State plan under the 
          Medicaid program under title XIX of such Act, or both.
              (4) Secretary.--The term ``Secretary'' means the Secretary 
          of Labor.
              (5) Small business; small entity; small government 
          jurisdiction; small organization.--The terms ``small 
          business'', ``small entity'', ``small government 
          jurisdiction'', and ``small organization'' have the meanings 
          given such terms in section 601 of title 5, United States Code.
              (6) Substantially similar rule.--The term ``substantially 
          similar rule'' means any rule or proposed rule that is a 
          reissuance of the July 6, 2015, proposed rule in substantially 
          the same form as such rule, or is the issuance of a new rule or 
          proposed rule that is substantially the same as the July 6, 
          2015, rule, including any rule that implements the provisions 
          of section 13(a)(1) of the Fair Labor Standards Act of 1938 (29 
          U.S.C. 213(a)(1)).
  
  SEC. 4. CONDITIONS PRECEDENT FOR SUBSTANTIALLY SIMILAR RULES.
  
      (a) Enforcement.--
              (1) In general.--Beginning on the date of enactment of this 
          Act, the July 6, 2015, proposed rule shall cease to have any 
          force or effect.
              (2) Final rule.--In the case that the July 6, 2015, 
          proposed rule is a final rule on the date of enactment of this 
          Act--
                      (A) the Secretary shall not enforce the final rule 
                  based on conduct occurring before such date of 
                  enactment;
                      (B) an employee shall not have any right of action 
                  against an employer for the employer's failure to 
                  comply with the final rule at any time prior to such 
                  date of enactment;
                      (C) any regulations that were amended by such final 
                  rule shall be restored and revived as if the final rule 
                  had never taken effect; and
                      (D) nothing in this Act shall be construed to 
                  create a right of action for an employer against an 
                  employee for the recoupment of any payments made to the 
                  employee prior to the date of enactment of this Act 
                  that were in compliance with such final rule.
      (b) Conditions for Substantially Similar Rules.--
              (1) In general.--The Secretary may promulgate any 
          substantially similar rule, subject to paragraph (3), only if 
          the Secretary has completed each action required under 
          paragraph (2).
              (2) Requirements for substantially similar rules.--The 
          actions required under this paragraph are the following:
                      (A) The Secretary shall conduct an analysis of the 
                  impact of the substantially similar rule, including an 
                  initial regulatory flexibility analysis under section 
                  603 of title 5, United States Code and assessments 
                  under clauses (i) through (iii) of section 6(a)(3)(C) 
                  of Executive Order 12866 (5 U.S.C. 601 note, relating 
                  to regulatory planning and review) to be provided to 
                  the Administrator of the Office of Information and 
                  Regulatory Affairs in accordance with such section, and 
                  that--
                              (i) accurately identifies the number of 
                          affected small entities by using specific data 
                          points from the most recent publication of the 
                          Statistics of U.S. Businesses by the Bureau of 
                          the Census;
                              (ii) addresses regional, State, county (if 
                          applicable), metropolitan, and nonmetropolitan 
                          salary and cost of living differences;
                              (iii) provides an analysis of any 
                          substantially similar rule, which shall include 
                          the percentile of full-time salaried workers 
                          affected, and such analysis shall be 
                          disaggregated by--
                                      (I) State;
                                      (II) industry subsector;
                                      (III) small organizations;
                                      (IV) small government 
                                  jurisdictions, including further 
                                  disaggregation by school district;
                                      (V) nonprofit organizations;
                                      (VI) Medicare or Medicaid dependent 
                                  health care providers; and
                                      (VII) small businesses;
                              (iv) provides an analysis of management and 
                          human resource costs for all employers, 
                          including costs associated with changing human 
                          resource systems, reclassifying employees, and 
                          extra hours spent scheduling employees;
                              (v) provides an analysis of the impact on 
                          lower-wage industries, including by geographic 
                          area;
                              (vi) provides an analysis of all non-
                          financial costs, including impact on 
                          employment, workplace flexibility, employee 
                          benefit structure for exempt and nonexempt 
                          workers, career advancement opportunities, new 
                          business formation, business termination, and 
                          loss of market share to foreign competition; 
                          and
                              (vii) includes a complete description of 
                          any significant alternative as described in 
                          section 603(c) of title 5, United States Code, 
                          to the substantially similar rule.
                      (B) The Secretary shall publish not less than one 
                  small entity compliance guide under section 212 of the 
                  Small Business Regulatory Enforcement Fairness Act of 
                  1996 (5 U.S.C. 601 note) to assist small entities in 
                  complying with the substantially similar rule.
                      (C) The Secretary shall provide notice of the 
                  substantially similar rule in the Unified Agenda of 
                  Federal Regulatory and Deregulatory Actions, compiled 
                  by the Regulatory Information Service Center of the 
                  General Services Administration.
                      (D) The Secretary shall ensure that the effective 
                  date for any final rule with respect to the 
                  substantially similar rule shall not be less than 1 
                  year after the publication of such final rule in the 
                  Federal Register.
                      (E) The Secretary shall comply with the notice and 
                  comment requirements under section 553 of title 5, 
                  United States Code, and provide a comment period of not 
                  less than 120 days.
              (3) Automatic updates.--Any substantially similar rule 
          promulgated by the Secretary shall not contain any automatic 
          updates to the salary threshold for purposes of the exemption 
          under section 13(a)(1) of the Fair Labor Standards Act of 1938 
          (29 U.S.C. 213(a)(1)), in accordance with section 5.
  
  SEC. 5. RULE OF CONSTRUCTION.
  
      The requirement under section 13(a)(1) of the Fair Labor Standards 
  Act of 1938 (29 U.S.C. 213(a)(1)) that the definitions applicable for 
  the exemption under such section be ``defined and delimited from time 
  to time by regulations of the Secretary'' shall be construed to--
              (1) require the Secretary to issue a new rule through 
          notice and comment rulemaking in accordance with section 553 of 
          title 5, United States Code, for each change in any salary 
          threshold under such section 13(a)(1) proposed by the 
          Secretary; and
              (2) exclude any rule that would result in changes to any 
          salary threshold under such section for multiple time periods, 
          including through any automatic updating procedure.
  
  SEC. 6. REQUIREMENTS FOR DUTIES TESTS.
  
      The Secretary may not promulgate any final rule that includes any 
  provision revising any of the duties tests provided in part 541 of 
  title 29, Code of Federal Regulations (or any successor regulation), 
  for exemption under section 13(a)(1) of the Fair Labor Standards Act of 
  1938 (29 U.S.C. 213(a)(1)) unless specific regulatory text for the 
  provision was proposed in the proposed rule.
target: Protecting Workplace Advancement and Opportunity Act This bill declares that the proposed or the final rule of the Department of Labor entitled "Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees" shall cease to have any force or effect. The rule revises the &quot;white collar&quot; exemption of executive, administrative, professional, outside sales, and computer employees from minimum wage and maximum hour, or overtime, requirements of the Fair Labor Standards Act of 1938 (FLSA).  If the proposed rule is a final rule on the date of enactment of this bill:  Labor shall not enforce it based on conduct occurring before that enactment date, an employee shall not have any right of action against an employer for the employer's failure to comply with the final rule at any time before that enactment date, any regulations that were amended by the final rule shall be restored and revived as if the final rule had never taken effect, and nothing in this bill shall be construed to create a right of action for an employer against an employee for the recoupment of any payments made to the employee before the enactment of this bill that were in compliance with that final rule.  Labor may promulgate any substantially similar rule only if it has completed certain required actions; but the rule shall not contain any automatic updates to the salary threshold for purposes of exemptions to minimum wage and maximum hour requirements under the FLSA. The requirement that definitions applicable for such exemptions be defined and delimited from time to time by Labor regulations shall be construed to:  require Labor to issue a new rule through notice and comment rulemaking for each change in any salary threshold it has proposed; and exclude any rule that would result in changes to any salary threshold for multiple time periods, including through any automatic updating procedure.  Labor may not promulgate any final rule that includes any revision to duties tests for exemption from minimum wage and maximum hours requirements unless specific regulatory text for the provision was proposed in the proposed rule.
feat_title: Protecting Workplace Advancement and Opportunity Act