Facts About Recent Changes to Overtime

The Administration’s final overtime rule, published on May 18th, will make an estimated 4.2 million new workers eligible for overtime pay. Salaried workers, making up to $47,476 annually, will get time-and-a-half payments for work over 40 hours in a week. The effective date is December 1, 2016.

Background

obamatime-state-mapOn March 13, 2014, President Obama signed a Presidential Memorandum directing the Department of Labor (DOL) to “propose revisions to modernize and streamline the existing overtime regulations.” Specifically, the President cited the exemption for executive, administrative and professional employees as having “not kept up with the modern economy.”

In response to the President’s memorandum, Department of Labor issued the proposed rule on July 6, 2015. The final rule was issued on May 18, 2016 and can be found here.

How The Overtime Rule Works

The Fair Labor Standards Act (FLSA) guarantees workers a minimum wage and overtime pay for hours worked above 40 hours in a week. However, some employees are exempted from the overtime pay requirement if:

(1) the employee makes a pre-determined and fixed salary;

(2) the salary is above $47,476 annually;

(3) the employee’s job duties primarily involve executive, administrative, or professional (EAP) tasks.

Since 2004, that salary threshold was set at $23,660 per year. The new rule more than doubles the threshold to $47,476 per year. Employees in executive, administrative, or professional positions making less than the increased salary threshold will not meet this exemption and thus must receive overtime pay. Furthermore, the salary threshold will automatically update every 3 years beginning on January 1, 2020.

WIPP’s Comments and Concerns

The 508-page rule addresses many of the more than 270,000 comments received including specific comments made by WIPP. WIPP advocated for an exemption for small businesses. The DOL recognized WIPP’s concerns, but concluded that their final salary threshold would “provide relief” as it is slightly lower than the $50,440 that was originally proposed. While the salary threshold is lower than estimated, it is still double the current threshold.

DOL also recognized WIPP’s concern of a loss of workplace flexibility. WIPP’s comment noted that many employees perform some of their work remotely and outside of normal business hours, such as working from home. The DOL responded that it “does not believe that workers will incur the significant change in flexibility.” The rule went on to state that, “Employers should be able to trust such valued employees to follow the employers’ instructions regarding when, where, and for how many hours they may work and to accurately record their hours worked.”

WIPP’s also commented on the difficulty of tracking employee hours to ensure compliance. This comment was also recognized by DOL, but they did not address this concern in their final rule.

The Fair Labor Standards Act, which governs the overtime rules, includes a carve-out for businesses that have less than $500,000 in annual revenue and do not engage in interstate commerce. However, DOL guidance suggests that the interstate commerce requirement is likely met by most businesses.

DOL has published additional information on these changes here. Please reach out to WIPP’s Government Relations team at advocacy@wipp.org with any questions.

 

New Overtime Regulations to Take Effect December 1, 2016

By Marina Burton Blickley, Esq., Centre Law & Consulting LLC

A draft of the Department of Labor’s final revised regulations covering white collar exemptions was just released and is set to become effective December 1, 2016 – right after elections.  The final rule sets the new salary threshold for exempt executive, administrative, and professional employees at $47,476 annually and $134,004 for exempt highly-compensated employees.  This is a dramatic increase from the prior levels of $23,660 and $100,000.  Now that the final salary levels are known companies should be reviewing their employee classifications and making adjustments where necessary to be prepared to be in compliance come December 1, 2016.  Government contractors with contracts covered by the Service Contract Labor Standards (formally Service Contract Act) should also perform an analysis to ensure employees performing services on those contracts are being provided appropriate wages and health and welfare benefits since the FLSA overtime exemptions are used to determine coverage under that Act.

There have been a number of recent updates to the employment laws governing employers generally and, in particular, government contractors.  WIPP’s Give Me 5 recently hosted a webinar covering these and other changes.  To learn more, please listen to the podcast available here –

 

Give Me 5: Where Human Resources and Government Contracts Intersect

Guest Speakers:  Barbara Kinosky, President and Managing Partner, Centre Law & Consulting and Marina Blickley, Associate, Centre Law & Consulting

Federal contractors are subject to a unique set of rules, laws and regulations.    Many of these laws and regulations also apply to subcontractors.   This session covers the more complicated areas where HR and government contracts intersect.  Topics include:

  • OFCCP – latest news on increased HR compliance requirements
  • Executive Order actions and recent regulatory changes
  • Common challenges to complying with the Service Contract Labor Standards/Service Contract Act
  • Tips for handling whistleblower and relator complaints
  • Handling mandatory disclosures
  • Changes to implement now

Listen to the Podcast View the Presentation

 

Overtime Rule is Over The Top

By John Stanford, WIPP Government RelationsOvertime pic

The Department of Labor, it would appear, is working overtime. Two weeks ago, WIPP responded to the agency’s proposal to require labor history for federal contractors. Now, WIPP is addressing a different proposed regulation – this one making changes to overtime pay. Both proposals were well intentioned, and both pose risks to women entrepreneurs.

Disclaimer: this blog is a brief summary, so if your business may be affected I encourage you to read WIPP’s comment in its entirety.

It all began last spring, when President Obama directed the Labor Department to update overtime regulations, saying the standards for some employees had “not kept up with the modern economy.” Specifically, the so-called white-collar exemption was out of date. The exemption allows employers to avoid paying overtime (required anytime an employee works more than 40 hours a week) for executive, administrative, and professional employees because they typically have better pay, benefits, and privileges.

The exemption has three criteria. First, the employee must be salaried. Second, the salary must be above a certain threshold. Third, the employee duties must meet certain criteria – basically, you cannot just give someone a manager’s title and exempt them; they must be acting as a manager.

To answer the President’s call for modernization, the Labor Department proposed to update the second piece, the salary threshold, from roughly $24,000 to $50,440 and index it to economic growth. Essentially, this qualifies white-collar employees who make less than $50,000 a year for overtime pay if they work more than forty hours a week.

WIPP agrees with the President that our regulations do not match a 21st century economy, and we should work on updating these requirements for a fair and modern workplace. Moreover, companies that are purposefully skirting the rules on overtime pay and cheating otherwise qualified employees should be held accountable.

Nonetheless, simply doubling the salary threshold goes too far and achieves too little. While large companies in large cities may be able to afford a $50,000 salary floor, the entrepreneurial community is left with bad options: possibly cut employees to afford a minimum salary for others, or restrict working hours and set up an hourly tracking system. Notably, the Labor Department estimated only a quarter of employees will likely see higher paychecks. Others may see reduced hours.

In the comment, WIPP highlighted concerns about the cost to implement the rule, difficulties in application of the rule, and the dangerous impact on employee wages and benefits.

The Labor Department predicted that simply implementing this change would cost small businesses, including the vast majority of the nearly ten million women-owned firms, between $130-$180 million in the first year alone. That does not include the more than $500 million in increased wages small businesses are expected to pay. The Labor Department itself mentions that business could cut hours and benefits to make up for this loss.

Moreover, to ensure compliance with these new regulations, businesses will begin closely monitoring and tracking their employees’ work hours. Tracking and monitoring employee hours is very difficult, if not impossible, given the evolving dynamics of the workforce. Many white collar employees have flexible schedules, work from home, check and answer emails from smartphones or tablets and are no longer restricted by a rigid 9-5 schedule.

It also isn’t just companies. Non-profits face the same requirements. An exception for them (as well as small businesses) is so narrowly crafted it may not cover many mission-oriented organizations or the smallest of businesses. Both are places where working above and beyond forty hours a week may be more about commitment to a cause than a bigger paycheck. For this reason, WIPP asked that the exception be broadened to actually apply to small businesses and non-profits.

The idea that our regulations need to be updated is not political – it’s common sense. But often the regulatory pendulum swings too far as it has here. As proposed, women entrepreneurs could face the arduous tasks of transitioning current employees from salaried to hourly workers and possibly cutting benefits to make payroll all while tracking and limiting employee hours. Talk about working overtime.