By: John R. Vreeland
This week, President Obama and Secretary of Labor Thomas Perez announced the publication of a final rule to take effect December 1 that will overhaul the Fair Labor Standard Act's overtime regulations. The U.S. Department of Labor (USDOL) estimates that these changes will add more than four million employees to the overtime rolls.
Right now, in general, an employee is exempt from overtime pay if the employee satisfies three tests:
- Duties Test: The employee's primary job duties qualify as executive, administrative, or professional in nature, as these terms are defined in the regulations.
- Salary Basis Test: The employee is paid on a salary basis, meaning the employee receives a predetermined and fixed salary that is not reduced because of variations in the quality or quantity of the work performed (i.e., no docking).
- Salary Level Test: The employee's weekly salary meets the minimum amount specified in the regulations.
The most significant change in the USDOL's new rule is to the Salary Level Test. Today, the minimum salary needed to qualify for exempt status is $455 per week, or $23,600 annually. On December 1, 2016, this minimum will increase to $913 per week! This means in order to be exempt, an employee must be paid an annual salary of at least $47,476.
By more than doubling the minimum salary amount, many salaried employees who work long hours and currently qualify for an overtime exemption will on December 1 become eligible for overtime pay unless their salaries are increased. An employee whose weekly salary is below $913 will become overtime-eligible and you will have to track the employee's hours of work through a verifiable timekeeping method and pay time-and-a-half for each hour worked over 40 in a workweek.
Employers need to start preparing now. First, you must identify your exempt employees whose salaries are below the new salary threshold. Then perform a business analysis to determine whether it is more cost effective to increase employee salaries to the minimum threshold, or treat these employees as overtime-eligible. We also recommend that you take this opportunity to evaluate whether your exempt employees are satisfying the other two tests. Many times we find that an employee's exempt status is based on a job description that no longer accurately reflects the employee's actual job duties. We recommend that employers self-audit their job classifications at least every two years to ensure employees classified as exempt currently satisfy a duties test and that pay practices for exempt employees meet the Salary Basis Test. Periodic self-audits are especially important now because the USDOL's new rule establishes a mechanism for automatically updating the salary level every three years.
Employers cannot afford to be out of compliance with the FLSA. The Departments of Labor at both the federal and state levels have already signaled that they intend to aggressively enforce wage and hour laws. In addition, plaintiffs' lawyers have become focused on wage and hour claims. Wage and hour litigation is by far the fastest growing type of employment litigation. Last year, more than 9,000 FLSA lawsuits were filed in the United States; many of them were filed as "collective actions" - the FLSA's version of a class action. That is a 450% increase since 2000. This trend will almost certainly continue as plaintiffs' lawyers hope to catch employers flat-footed and out of compliance with the new overtime regulations.
Wage and hour litigation can be expensive for employers. The FLSA provides for 100% liquidated damages - or double damages. It also shifts the plaintiff's legal costs to the employer, meaning if the plaintiff proves a single violation of the law, the employer pays the plaintiff's attorneys' fees. This typically makes it difficult to resolve these types of suits early as the FLSA creates an incentive for a plaintiff's lawyer to work the case and then recover attorneys' fees when the lawsuit finally ends.
Again, the time to prepare is now, not when you receive the lawyer's demand letter or the Department of Labor's enforcement notice. A thorough self-audit, especially with the assistance of counsel, is an employer's best protection against costly wage and hour enforcement actions and lawsuits.
For more information regarding these recent developments, please contact John R. Vreeland, Esq. Director of the firm's Wage & Hour Compliance Practice Group, at firstname.lastname@example.org or 973-533-0777.