We have harnessed a number of special avenues to connect with you regarding the new overtime rule, including our , a live Facebook
with USA Today and our recent
before the U.S. House Education and the Workforce Committee.
Now, for our latest avenue: Twitter. For those who use Twitter to keep up with current events, join
tomorrow, Thursday June 16, at 2:00 PM EST for a “chat” about the new FLSA exemption rule. Wage and Hour Division Administrator David Weil, Solicitor of Labor Patricia Smith, and Michael Hancock of Cohen Milstein will be joining him to answer questions focused primarily on the impact that the new rule will have on businesses nationally. You can join the conversation on Twitter using the hashtag: #OTRuleChat.
We look forward to your tweets!
Seyfarth Synopsis: As early as next week, the Department of Labor is expected to issue its final rule implementing revisions to the regulations governing the application of the FLSA’s “white collar” exemptions from overtime and minimum wage.
The culmination of more than two years’ worth of work by the Department, the final rule has the potential to impact the exempt status of a wide variety of positions in virtually every industry and impose the most significant changes to those regulations in at least a decade.
In this Client Alert, we bring you the latest intelligence on the content and timing of the final rule, as well as what you can expect from your team at Seyfarth Shaw in the coming weeks.
We have also created a special update series on the new FLSA overtime exemption rules. To receive this special series, please subscribe by clicking .
Do we know what the final rule contains?
The substance of the final rule will not be known to the public until the Department announces the rule.
That announcement will not take place until after the final rule has been approved by the White House’s Office of Management and Budget (OMB).
OMB has been meeting with a wide range of stakeholders since it began its review on March 14.
OMB does not reveal the contents of the final rule during its meetings.
Nevertheless, stakeholder attendees often leave the meeting with definite ideas of what the rule will contain.
And, government officials sometimes leak information to the media. Here’s what the Department proposed on the key issues and what we’ve been hearing we might expect in the final rule.
What’s the expected timing for all of these changes?
Due to the impact of a seldom-used, but potentially significant law known as the Congressional Review Act (CRA), it is widely believed that the Department wishes to publish the final rule (and provide the required notices to Congress) by May 16, 2016.
Regulations submitted to Congress after that date are expected to be subject to the CRA’s “clawback” provision, which would push the deadline for Congress to vote to “repeal” the rulemaking into the next–and possibly more employer-friendly–Administration.
In the spring of 2015, OMB completed its review of the proposed rule in 55 days.
As of today, the final rule has been under OMB review for 50.
With OMB stakeholder meetings on the rule scheduled as late as May 10, it is not likely that the final rule will be published before then, but it is entirely possible that the Department will announce the rule within a day or two of those meetings.
Once the rule is announced, will there be some type of grace period for implementation?
The final rule will almost certainly be a “major” rule, which, as a matter of law, means that the rule cannot be effective for at least 60 days following its publication in the Federal Register.
One of the major concerns raised by employer groups in their meetings with OMB, however, has been the difficulty they will have implementing a change to the salary threshold in such a short period of time, particularly when no employer knows what that salary threshold will be.
Upon learning the salary level, employers will need to determine the set of impacted positions and assess whether to convert each position to non-exempt, raise the salary level, and/or engage in some restructuring of the organization to better accommodate the new salary requirement.
In addition, employers will need to consider how the decisions with respect to the impacted positions have further effects on positions outside the impacted population.
Compounding the difficulty in implementing salary threshold changes are (among other things) the technical requirements for implementing such changes in payroll systems, the need to train newly non-exempt employees on timekeeping matters (and, potentially, to add more timeclocks to account for the new population), and state law requirements to notify an employee of changes to the amount and/or method of pay in advance (in some states a pay period in advance).
Add to that the preparation of communications plans to implement each of these elements, and it is clear that a 60-day implementation would be extremely difficult.
As a result, the employer community has asked OMB to provide for a longer effective date period.
In 2004, the Department gave employers 120 days to implement a far more modest salary increase, and we are hopeful that it will do the same here.
What should I be doing now?
Whether the effective date is 60 or 120 days or even 180 days, implementation of the Department’s changes is going to require prompt and focused action by employers.
Employers would be wise to identify now, if they have not already done so, the positions that may be subject to the salary threshold increase, whether the new level will be $45,000 or $50,000, or somewhere in between.
Such a review should consider how operations would be impacted by reclassification to non-exempt status and/or a salary increases to ensure compliance and the impact of those changes on other employees in addition to those directly impacted.
Employers also may take this time to determine how much lead time will be necessary to implement any changes by their payroll and timekeeping vendors and to assess whether training regarding timekeeping practices and general management of newly reclassified non-exempt employees is desirable (and, if so, when and how to provide it).
What can I expect from Seyfarth in the coming weeks?
Seyfarth Shaw will be keeping you up-to-date on the latest developments through a number of resources.
As soon as the substance of the new rules are known, we will issue another
Management Alert.
This Alert will be sent to you by email and updates to our social media outlets. Additional analysis will be sent during the weeks after its release through our special series that can be subscribed to by clicking .
In addition, we will make information available on our Wage Hour Blog at .
Anticipating the announcement of the new regulations next week, we are scheduling a webinar on Monday, May 16, at 2:00 p.m. EDT (11:00 a.m. PDT, 12:00 p.m. MDT, 1:00 p.m. CDT).
Alex Passantino, former Acting Wage & Hour Administrator, along with other of our most experienced wage and hour practitioners will be discussing these rules and their impact on employers.
You may sign up for this webinar immediately by clicking
or through an invitation that you will receive shortly.
Be on the lookout for the announcement of our Exempt Status Resource Center that will be available online and will provide easy and instant access to a host of materials about the new rules and to help organizations think through the many business and legal issues arising from them.
Of course, if you and your organization would like help thinking through any of these issues, we encourage you to reach out to the Seyfarth attorney with whom you work and/or any member of our wage-and-hour team listed .
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Relevant Posts From Other Seyfarth BlogsAccording to anthropogenic global warming (AGW) theory, carbon dioxide increases the potential of water vapor to absorb and emit IR radiation as a consequence of the overlapping absorption/emission spectral bands. I have determined the total emissivity of a mixture of gases containing 5% of water vapor and 0.039% of carbon dioxide in all spectral bands where their absorptivities/emissivities overlap. The result of my calculations is that carbon dioxide reduces the total absorptivity/emissivity of the water vapor, working like a coolant, not a warmer of the atmosphere and the surface.
April 8, 2011.
There was an error in calculating the overlapping bands, discovered thanks to criticism from ‘Neutrino’.
The errors are now shown with lines through them, the correct figures beside them.
The ‘adjusted’ calculations give a greater cooling effect from carbon dioxide .
Introduction
Since the popularization of AGW theory in 1988, proponents have argued that carbon dioxide causes an increase in the total absorptivity of the atmosphere1, 2, 3.
For example, at Environmental Defense1 it is argued that:
“As humans emit greenhouse gases like CO2, the air warms and holds more water vapor, which then traps more heat and accelerates warming.”
And at Science Daily2 that:
“Climate warming causes many changes in the global carbon cycle, with the net effect generally considered to be an increase in atmospheric CO2 with increasing temperature — in other words, a positive feedback between temperature and CO2.”
Masato Sugi and Jun Yoshimura3 claim that:
“By the overlap effect of CO2 and water vapor absorption bands, the existence of CO2 significantly reduces the cooling rate of water vapor…”
These arguments suggest that by increasing the concentration of carbon dioxide in the atmosphere there will be warming of the atmosphere.
However, according to results from experimentation made by H. C. Hottel11, B. Leckner12, M. Lapp13, C. B. Ludwig14, A. F. Sarofim15 and their collaborators14, 15 on this matter, the combined effect of overlapping absorption bands causes a reduction on the total absorptivity of a mixture of gases4, 5, 6.
My assessment reinforces the argument made by H. C. Hottel11, B. Leckner12, M. Lapp13, C. B. Ludwig14, A. F. Sarofim15 and their collaborators14, 15 because my calculations coincide with the results obtained from the algorithms derived from their experiments.
In 1954, Hoyt C. Hottel conducted an experiment to determine the total emissivity/absorptivity of carbon dioxide and water vapor11. From his experiments, he found that the carbon dioxide has a total emissivity of almost zero below a temperature of 33 °C (306 K) in combination with a partial pressure of the carbon dioxide of 0.6096 atm cm.
Seventeen years later, B. Leckner repeated Hottel’s experiment and corrected the graphs12 plotted by Hottel. However, the results of Hottel were verified and Leckner found the same extremely insignificant emissivity of the carbon dioxide below 33 °C (306 K) of temperature and 0.6096 atm cm of partial pressure.
Hottel’s and Leckner’s graphs show a total emissivity of the carbon dioxide of zero under those conditions.
The results of Hottel and Leckner have been verified by other researchers, like Marshall Lapp13, C. B. Ludwig14, A. F. Sarofim15, who also found the same physical trend of the carbon dioxide.
On the other hand, in agreement with observations and experimentation carried out by the same investigators11, 12, 14, 15, 16, the atmospheric water vapor, in a proportion of 5% at 33 °C, has a total emissivity/absorptivity of 0.4.5, 6
The total emissivity/absorptivity of water vapor combined with its high specific heat capacity and its volumetric mass fraction makes water vapor the most efficient absorbent and emitter of Infrared Radiation among all gases forming the Earth’s atmosphere.
In contrast, the carbon dioxide has negligible total emissivities and partial pressures as a component of the atmosphere (the partial pressure of the carbon dioxide at the present atmosphere is 0.0051 atm cm).
So what is the effect of a combination of water vapor and carbon dioxide at current conditions of partial pressure, temperature and mass densities in the atmosphere?
Methodology
The whole range of spectral absorption of both gases and an effective path length (Le) of 7000 m were considered for calculating the total emissivity of a mixture of water vapor and carbon dioxide in the atmosphere. I have made use of formulas on radiative heat transfer taken from the references numbered as 4, 5 and 6.
However, I made use of the main formula to calculate the total emissivity of a mixture of gases in the atmosphere, where their absorption bands overlap, that was derived by H. C. Hottel11, B. Leckner12, M. Lapp13, C. B. Ludwig14, A. F. Sarofim15 and their collaborators14, 15, and enhanced by contemporary authors as Michael Modest5, as from the results of observations, as from the results of experimentation.
The effective path length is the length of the radiation path through the atmosphere. It differs from the geometrical distance travelled because the radiation is scattered or absorbed on entering and leaving the atmosphere. In a vacuum there is no difference between the effective path length and the geometrical path length. As this assessment deals with the atmosphere, I considered the effective path length in my calculations.
The volumetric mass fraction of water vapor in the atmosphere fluctuates between 10000 ppmV and 50000 ppmV 10. This variability allows the water vapor to show a wide range of high total absorptivities and total emissivities which may vary according to the temperature of the molecule of water vapor. For this reason, I considered the maximum mass fraction of the water vapor in the atmosphere.
The water vapor potential to absorb shortwave infrared radiation from the solar photon stream makes of it the most efficient absorbent of Infrared Radiation. In quantum physics, a photon stream is a current of photons emitted by a source that behave as particles and waves and have a specific directionality i.e. from the source towards the surroundings.
After concluding my analysis, Dr. Charles R. Anderson called my attention to the observation that these calculations constituted further evidence for his theory about the cooling effect of carbon dioxide on the Earth’s surface. When Dr. Anderson and I further examined the calculations, we found that carbon dioxide not only has a cooling effect on the surface, but also on the molecules of other gases in the atmosphere.
The total emissivities of the atmospheric carbon dioxide, water vapor and oxygen were obtained by taking into account the mean free path length of the quantum/waves through those gases, taken individually, and the time lapse rate that a quantum/wave takes on leaving the troposphere after colliding with molecules of carbon dioxide, water vapor and oxygen. This set of calculations will be described in a future article.
Total Emissivity of a Mixture of Water Vapor and Carbon Dioxide in the Current Atmosphere of the Earth
On July 3, 2010, at 10:00 hr (UT), the proportion of water vapor in the atmosphere at the location situated at 25? 48? N lat. and 100 ? 19’ W long., at an altitude of 513 m ASL, in San Nicolas de los Garza, Nuevo Leon, Mexico, was 5%. The temperature of the air at an altitude of 1 m was 310.95 K and the temperature of the soil was 330 K. I chose this location, near my office, because it is an open field, far enough from the city and its urban effects.
From this data, I proceeded to calculate the following elements:
The correction factor for the overlapping emissive bands of H2Og and CO2g.
The correction factor of the total emissivity of carbon dioxide where the radiative emission bands of both gases overlaps, considering that the partial pressure of the carbon dioxide is 0.00039 atm.
The total emissivity of the mixture of water vapor and carbon dioxide in the atmosphere.
The total normal intensity of the mixture of water vapor and carbon dioxide in the atmosphere.
The change of temperature caused by the mixture of water vapor and carbon dioxide in the atmosphere.
Obtaining the correction factor for the overlapping emissive bands of H2Og and CO2g
To obtain the total emissivity of the mixture of water vapor and carbon dioxide in the atmosphere, we need to know the equilibrium partial pressure of the mixture of water vapor and carbon dioxide. The formula for obtaining the equilibrium partial pressure (ζ) of the mixture is as follows:
ζ = pH2O / (pH2O + pCO2)
Where pH2O is the partial pressure of water vapor in a proportion of 5% in the atmosphere –which is an instantaneous measurement of the water vapor, and pCO2 is the partial pressure of the carbon dioxide.
Known values:
pH2O = 0.05 atm
pCO2 = 0.00039 atm
Introducing magnitudes:
ζ = pH2O / (pH2O + pCO2) = 0.05 atm / (0.05 atm + 0.00039 atm) = 0.9923
Therefore, ζ = 0.9923
Obtaining the total emissivity of a mixture of water vapor and carbon dioxide in the atmosphere:
Now let us proceed to calculate the magnitude of the overlapped radiative emission bands of the water vapor and the carbon dioxide. To do this, we apply the following formula:
ΔE = [[ζ / (10.7 + 101 ζ)] – 0.0089 (ζ)^10.4] (log10 [(pH2O + pCO2) L] / (pabsL) 0)^2.76 [Ref. 5]
Known values:
ζ = 0.9923
pH2O = 0.05 atm
pCO2 = 0.00039 atm
(pabsL)0 (absolute pressure of the mixture of gases on the Earth’s surface) = 1 atm m
Le = (2.3026)) (Aas / μa) = 7000 m
Introducing magnitudes:
ΔE = [(0.992 / 110.892) – (0.0089 * (0.992)^10.4] * (log10 [(0.05 atm + 0.00039 atm) 7000 m] / (1 atm m)0)^2.76 (Ref. 2)
ΔE = [0.00076] * (2.55 atm m / 1 atm m) = 0.0019; rounding up the cipher, ΔE = 0.002
Therefore, the correction addend for the overlapping absorption bands is 0.002
Consequently, the total emissivity of the mixture water vapor and carbon dioxide is as follows:
E mixture = ECO2 + EH2O – ΔE = 0.0017 + 0.4 &# = 0.3997
Total Normal Intensity of the energy radiated by the mixture of gases in the air:
Therefore, the total normal intensity (I) (or the spectral radiance over wavelength) caused by the mixture of water vapor and carbon dioxide in the atmosphere is:
I = Emix (σ) (T)^4 / π
(Ref. 5 and 6)
I = 0.7 x 10^-8 W/m^2 K^4) (310.95)^4 / 3.1416 = 67.44 W/m^2 sr
By way of contrast, the spectral irradiance over wavelength caused by the surface (soil), with a total emissivity of 0.82 (Ref. 1 and 5), is as follows:
I = Esurface (σ) (T)^4 / π (Ref. 5 and 6)
I = 0.82 (5.6697 x 10-8 W/m^2 K^4) (330 K) / 3.1416 = 203 W/m^2 sr
Following Dr. Anderson’s recommendation (which I mentioned above in the abstract) I calculated the overlapping bands of a mixture of water vapor (4%), carbon dioxide (0.039%) and Oxygen (21%).
The calculation for a mixture of atmospheric Oxygen (O2), Water Vapor (H2O) and Carbon Dioxide (CO2) is as follows:
ζ = pO2 / (pO2 + pCO2) = 0.21 atm / (0.21 atm + 0.00039 atm) = 4.1675 0.9981
ζ = pO2+CO2 / (pHO2 + pO2+CO2) =
0.9981 4.1675 atm / ( 0.9981
4.1675 atm + 0.05 atm) = 0.9881 0.9522
Consequently, the equilibrium partial pressure of the mixture of oxygen, water vapor and carbon dioxide in the atmosphere is 0.9881 0.9522
And the change of the total emissivity of the mixture is:
ΔE = [[ζ / (10.7 + 101 ζ)] – 0.0089 (ζ)^10.4] (log10 [(pH2O + pCO2 + pO2) L] / (pabsL) 0)^2.76 [Ref. 5, 11,12,14 and 15]
ΔE = [[0.9881/ (10.7 + 101 (0.)] – 0.1)^10.4] (log10 [(0.26039 atm) 7000 m] / (1 atm)^2.76 = 0.00989
ΔE = [[0. 9522/ (10.7 + 101 (0.)] – 0.2)^10.4] (log10 [(0.26039 atm) 1 m] / (1 atm)^2.76 =
0.008 * 26.11 = 0.2086
And the total emissivity of the mixture of gases in the atmosphere is:
E mixture = ECO2 + EH2O – ΔE = 0.0017 + 0.4 + 0.004 – 0.00989 0.2086 = 0.3958 0.1971; or 0.2 if we round up the number.
Evidently, the mixture of oxygen, carbon dioxide and water vapor, at current conditions of temperature and partial pressures, causes a sensible decrease of the total emissivity of the mixture of air.
The general conclusion is that by adding any gas with total emissivity/absorptivity lower than the total emissivity/absorptivity of the main absorber/emitter in the mixture of gases makes that the total emissivity/absorptivity of the mixture of gases decreases.
In consequence, the carbon dioxide and the oxygen at the overlapping absorption spectral bands act as mitigating factors of the warming of the atmosphere, not as intensifier factors of the total absorptivity/emissivity of the atmosphere.
Conclusions
My assessment demonstrates that there will be no increase in warming from an increase of absorptivity of IR by water vapor due to overlapping spectral bands with carbon dioxide.
On the overlapping absorption spectral bands of carbon dioxide and water vapor, the carbon dioxide propitiates a decrease of the total emissivity/absorptivity of the mixture in the atmosphere, not an increase, as AGW proponents argue 1, 2, 3.
Applying the physics laws of atmospheric heat transfer, the carbon dioxide behaves as a coolant of the Earth’s surface and the Earth’s atmosphere by its effect of diminishing the total absorptivity and total emissivity of the mixture of atmospheric gases.
Dr. Anderson and I found that the coolant effect of the carbon dioxide is stronger when oxygen is included into the mixture, giving a value of ΔE = 0.3814, which is lower than the value of ΔE obtained by considering only the mixture of water vapor and carbon dioxide.
by Nasif S. Nahle, Director of Scientific Research Division at Biology Cabinet Mexico
Read more from Nasif by scrolling through the articles here:
Acknowledgments
I am very grateful to Dr. Charles R. Anderson, PhD, author of the Chapter 20 in the book Slaying the Sky Dragon-Death of the Greenhouse Gases Theory, especially page 313
for his valuable help on realizing the cooling role of the Oxygen in the atmosphere.
References
Manrique, J. A. V. Transferencia de Calor. 2002. Oxford University Press. England.
Modest, Michael F. Radiative Heat Transfer-Second Edition. 2003. Elsevier Science, USA and Academic Press, UK.
Pitts, Donald and Sissom, Leighton. Heat Transfer. 1998. McGraw-Hill, NY.
Van Ness, H. C. Understanding Thermodynamics. 1969. General Publishing Company. Ltd. Ontario, Canada.
Engel, Thomas and Reid, Philip. Thermodynamics, Statistical, Thermodynamics & Kinetics. 2006. Pearson Education, Inc.
Anderson, Charles R. Slaying the Sky Dragon-Death of the Greenhouse Gas Theory. 2011. Chapter 20. Page 313.
Hottel, H. C. Radiant Heat Transmission-3rd Edition. 1954. McGraw-Hill, NY.
Leckner, B. The Spectral and Total Emissivity of Water Vapor and Carbon Dioxide. Combustion and Flame. Volume 17; Issue 1; August 1971, Pages 37-44.
Ludwig, C. B., Malkmus, W., Reardon, J. E., and Thomson, J. A. L. Handbook of Infrared Radiation from Combustion Gases. Technical Report SP-3080.NASA. 1973.
Sarofim, A. F., Farag, I. H., Hottel, H. C. Radiative Heat Transmission from Nonluminous Gases. Computational Study of the Emissivities of Carbon Dioxide. ASME paper No. 78-HT-55.1978
About Nasif S. Nahle
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