Escolar Documentos
Profissional Documentos
Cultura Documentos
4,
2015
Ms.
Mary
Zeigler
Director,
Division
of
Regulations,
Legislation,
and
Interpretation
Wage
and
Hour
Division
U.S.
Department
of
Labor
Room
S3502
200
Constitution
Avenue
N.W.
Washington,
D.C.
20210
Re:
Defining
and
Delimiting
the
Exemptions
of
Executive,
Administrative,
Professional,
Outside
Sales
and
Computer
Employees
[RIN
1235AA11]
Dear
Director
Zeigler:
The
National
Association
of
Truck
Stop
Operators
(NATSO)
appreciates
this
opportunity
to
provide
comments
on
the
Department
of
Labors
(DOLs
or
the
Departments)
proposed
revisions
to
the
regulations
defining
and
delimiting
the
exemptions
from
minimum
wage
and
overtime
pay
for
executive,
administrative,
professional,
outside
sales
and
computer
employees
(Proposed
Rule
or
the
Proposal).1
The
truckstop
and
travel
plaza
industry
prides
itself
on
providing
competitive
compensation
and
benefits
packages
to
its
employees
in
an
environment
that
facilitates
professional
growth
and
career
advancement.
Converting
an
excessively
large
number
of
employees
from
exempt
to
nonexempt,
however,
can
lead
to
unintended
consequences
that
ultimately
harm
the
very
employees
that
the
Department
is
seeking
to
protect.
These
comments
are
intended
to
assist
DOL
in
understanding
how
its
regulations
will
affect
the
truckstop
and
travel
plaza
industry,
and
assist
the
Department
in
updating
its
overtime
rules
without
triggering
any
unintended,
undesirable
results.
I.
SUMMARY
NATSO
opposes
any
changes
to
the
duties
test,
which
at
the
present
time
accommodates
the
fact
that
many
upper-level
managerial
and
executive
personnel
at
truckstops
and
travel
plazas
occasionally
perform
non-exempt
duties.
No
changes
should
be
made
to
the
duties
test
without
first
issuing
another
notice
of
proposed
rulemaking
that
proposes
specific
revisions
to
the
regulations
on
which
the
public
can
provide
comments.
Although
an
appropriate
salary
threshold
increase
may
be
warranted,
such
an
increase
should
account
for
regional
differences
in
salaries.
These
differences
are
1
80
Fed.
Reg.
38516
(July
6,
2015).
often
quite
substantial.
The
proposal
does
not
account
for
these
differences.
Thus,
the
new
salary
thresholds
would
be
out
of
sync
with
many
regional
economies
throughout
the
country.
The
final
rule
should
account
for
regional
differences
in
salaries
to
provide
the
desired
benefits
to
employees
without
undercutting
these
employees
aspirations
to
climb
the
corporate
ladder.
The
following
comments
expand
upon
these
issues.
II.
NATSO,
Inc.
NATSO
is
a
national
trade
association
representing
travel
plaza
and
truckstop
owners
and
operators.
NATSOs
mission
is
to
advance
the
success
of
truckstop
and
travel
plaza
members.
Since
1960,
NATSO
has
dedicated
itself
to
this
mission
and
the
needs
of
truckstops,
travel
plazas,
and
their
suppliers
by
serving
as
Americas
official
source
of
information
on
the
diverse
industry.
NATSO
also
acts
as
the
voice
of
the
industry
on
Capitol
Hill
and
before
regulatory
agencies.
NATSO
currently
represents
approximately
1,381
travel
plazas
and
truckstops
nationwide,
comprised
of
1,071
chain
locations
and
310
independent
locations,
owned
by
approximately
200
corporate
entities.
Approximately
80
percent
of
NATSO
members
facilities
are
located
within
one-quarter
mile
of
the
Interstate
Highway
System,
serving
interstate
travelers
exiting
the
highway
and
serving
as
the
home
away
from
home
for
the
nations
professional
truck
drivers.
Efficient
and
effective
operations
at
truckstops
and
travel
plazas
allows
NATSOs
members
to
sell
products
to
the
trucking
industry
and
the
American
public
at
lower
costs.
This
makes
the
costs
of
traveling
less
expensive
and
the
lowers
the
costs
transporting
goods
by
truck,
which
can
serve
to
make
all
goods
more
affordable.
III.
Expanding
the
Number
of
Employees
Eligible
for
Overtime
Pay
Can
Lead
to
Unintended
Consequences
that
Ultimately
Harm
the
Very
Employees
that
the
Proposal
is
Designed
to
Protect
As
a
preliminary
matter,
NATSO
urges
the
Department
to
keep
in
mind
the
practical
consequences
of
converting
an
excessively
large
number
of
employees
from
exempt
to
nonexempt.
This
mandatory
transition
can
lead
to
unintended
consequences
that
ultimately
harm
the
very
employees
that
the
Department
is
seeking
to
protect.
Indeed,
many
employees
would
find
the
change
unwelcome,
causing
them
to
lose
many
benefits
that
they
currently
enjoy
as
exempt
employees.
Specifically,
many
employees
that
are
currently
exempt
and
paid
on
a
salary
basis
will
be
converted
to
hourly.
This
will
enable
employers
to
more
closely
track
and
monitor
employee
hours.
This
can
lead
to
a
decline
in
employee
morale,
as
this
Proposal
does
not
include
specific
regulatory
text
regarding
potential
changes
to
the
duties
test.
Because
the
Proposed
Rule
does
not
include
any
specific
proposals
to
revise
the
duties
test,
DOL
should
not
finalize
any
such
revisions
without
first
affording
the
public
an
opportunity
to
examine
and
comment
upon
specific
proposed
changes.
To
finalize
changes
to
the
duties
test
based
on
the
high-level
discussion
contained
in
the
Proposal
would
arguably
violate
the
Administrative
Procedure
Act.2
It
would
also
be
against
the
public
interest
because
DOL
will
not
have
an
adequate
understanding
of
the
affects
its
final
rule
would
have
on
the
variety
of
industries
that
are
subject
to
its
regulations.
B.
The
current
duties
test
accommodates
the
fact
that
many
upper
level
managerial
and
executive
personnel
at
truckstops
and
travel
plazas
occasionally
perform
non-exempt
duties
In
the
truckstop
and
travel
plaza
industry
as
well
as
the
larger
retail
sector
upper
level
employees
such
as
convenience
store
or
restaurant
managers
will
occasionally
help
the
employees
that
they
oversee
stock
shelves,
cook
food,
run
the
cash
register,
or
perform
other
physical
work
in
addition
to
their
primary
duties
as
a
manager.
These
white-collar
employees
appreciate
this
flexibility,
as
it
not
only
affords
them
the
flexibility
to
conduct
their
operations
as
efficiently
as
possible
to
increase
profits,
but
also
enables
them
to
lead
by
example
and
demonstrate
to
their
employees
that
they
can
also
perform
these
tasks.
The
current
duties
test
recognizes
these
market
realities
and
accommodates
businesses
where
white-collar
employees
have
concurrent
duties.3
Currently,
exempt
employees
are
permitted
to
perform
duties
that
are
non-exempt
in
nature
while
simultaneously
acting
in
a
managerial
capacity.
Indeed,
the
nature
of
operations
at
a
truckstop
is
such
that
it
is
often
engrained
in
employees
view
of
their
job
that
everyone
from
the
owner
to
a
lower-level
employee
pitches
in
as
needed.
As
a
general
matter,
exempt
employees
with
concurrent
duties
can
choose
when
they
perform
nonexempt
duties,
and
are
not
specifically
assigned
nonexempt
work
by
a
superior.
Exempt
employees
are
invariably
hired
on
the
basis
of
their
exempt-level
qualifications
and
experience;
the
nature
of
their
work
is
such
that
their
output
quality
and
performance
reviews
are
not
necessarily
associated
with
the
number
of
hours
worked
per
day
as
much
as
the
effectiveness
of
their
2
See,
e.g.,
Small
Refiner
Lead
Phase-Down
Task
Force
v.
U.S.
Environmental
Protection
Agency,
705
F.2d
506,
549
(D.C.
Cir.
1983)
(holding
that
Agency
notice
must
describe
the
range
of
alternatives
being
considered
with
reasonable
specificity,
otherwise
interested
parties
will
be
unable
to
make
informed
comments,
and
notice
will
not
lead
to
better-informed
Agency
decisionmaking.)
3
See,
e.g.,
29
C.F.R.
541.106;
see
also
541.700(c).
VI.
Nondiscretionary
Bonuses
The
Department
is
considering
allowing
nondiscretionary
bonuses
and
commissions
provided
to
exempt
employees
to
satisfy
up
to
10
percent
of
the
salary
level
test.
NATSO
supports
this
important
step,
as
bonuses
based
on
a
companys
financial
performance
help
give
employees
an
ownership
stake
in
the
business,
which
improves
employee
performance
and
morale.
The
DOLs
intention
to
limit
the
credit
to
bonuses
that
are
paid
monthly,
however,
will
often
negate
the
virtues
of
this
policy
shift.
Many
businesses
provide
nondiscretionary
bonuses
quarterly
or
annually,
and
rather
than
incentivizing
businesses
to
restructure
or
even
eliminate
their
bonus
program,
the
final
rule
should
permit
bonuses
that
are
paid
on
such
timelines
to
satisfy
the
salary
level
test.
NATSO
further
supports
raising
the
amount
of
the
salary
level
test
that
nondiscretionary
bonuses
can
satisfy
to
20
percent.6
VII.
Conclusion
NATSO
appreciates
the
opportunity
to
provide
these
comments,
and
stands
ready
to
provide
any
additional
information
or
assistance
to
DOL
that
may
be
helpful.
Please
do
not
hesitate
to
contact
us.
Sincerely,
_______________________________________
David
H.
Fialkov
Legislative
and
Regulatory
Counsel
NATSO
6
It
is
worth
noting
that
additional
overtime
payments
could
lead
employers
to
reduce
employees
bonuses
and
equity
incentives,
thus
limiting
managerial
employees
earning
potential
and
diminishing
their
personal
stake
in
the
success
of
the
business.