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The DOL: In your face once more with an overtime pay rule

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You would think that advisors have enough on their plate scrambling to prepare for the Department of Labor’s fiduciary rule, due to be fully phased in by April 2017.

Think again.

A new DOL overtime pay rule, finalized last May, raises by 100 percent (to $47,476 from $23,660) the threshold at which employees can qualify for the so-called “white collar” exemptions from overtime pay. It goes into effect December 1. The new DOL rule also requires that the salary threshold be automatically adjusted every three years.

Related: 3 possible traps in the new Labor joint employment guidance

The rule will benefit advisory firm staffers — administrative assistants, para-planners, marketing and compliance professionals, among others — who fall below the new pay level. Salaried employees earning less than $47,476 annually, and who work over 40 hours per week, will be entitled to time-and-half overtime pay. Those who burn the proverbial midnight oil on a scale comparable to their peers at law firms can look forward to heafty paychecks.

This is all well and good in light of the fact that economists, pundits and, yes, U.S. presidential candidates have been complaining about the effect of stagnant U.S. wages on the economy and Americans’ ability to make ends meet. But the overtime rule is especially ill-timed.

A view widely shared by market-watchers (including this columnist) is that the DOL’s fiduciary rule will substantially increase advisors’ compliance costs and exposure to class action litigation, forcing them to abandon smaller retirement accounts they’ll no longer be able to profitably serve on a fee or commission basis. If these advisors have to pay still more to cover basic overhead, the trend will only accelerate.

The upshot: Advisors will move upstream to cater to a more profitable clientele. Those unable to make the transition will sell their practices to colleagues still in the business or they’ll abandon the retirement space altogether. As for orphaned clients, they’ll be left with robo options for investment advice, which is hardly a satisfactory solution for those in need of comprehensive planning.

Understandably, the overtime pay rule has met with industry opposition. The Financial Services Institute, which represents independent financial services firms and advisors on Capitol Hill, says the rule is badly crafted. “The proposal will raise costs on small businesses, like those run by financial advisors, while doing nothing to streamline a complex and outdated maze of overtime rules.”

Financial services firms aren’t alone in their concern over the new overtime pay rule. In a July 2016 “Executive Employer Survey Report,” published by Littler Mendelson, more than 3 in 10 (31 percent) of 844 professionals polled — C-suite executives, in-house attorneys/corporate counsel, HR managers and others — said they expect DOL enforcement of federal employment laws (including the overtime rule) to have a “significant impact on their workplaces,” up from 18 percent last year. Nearly two-thirds of the respondents (65 percent) have conducted audits to determine the impact.

Related: Column: This is an awkward time to promise home care workers a raise

With luck, small business will have more time to prepare for the overtime pay rule. The “Regulatory Relief for Small Businesses, Schools, and Nonprofits Act” (H.R. 6094), which passed the House in late September under the leadership of Rep. Tim Walberg (R-Michigan), would postpone the rule’s implementation to June 1, 2017. Among the bill’s backers is the Independent Insurance Agents & Brokers of America (IIABA or the Big “I”), which believes the rule will “unnecessarily increase burdens on independent insurance agencies,” particularly when servicing policyholders outside of normal business hours.

Related: What to know about proposed overtime changes

Enactment of the bill would be a welcome reprieve for these and other financial professionals struggling with mounting regulatory costs, but passage would only delay the inevitable. Add to the burden the DOL’s conflict of interest rule and other compliance concerns on the horizon (the SEC has yet to propose its own harmonized fiduciary standard for brokers and registered investment advisors) and we may have the industry equivalent of a perfect storm.

Too many, I fear, will not survive it. That will be bad for the industry — one more essential than ever to Americans badly in need of financial assistance.

Related: Obama to expand overtime eligibility for millions of workers

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