Having received a couple of requests for info on the new overtime regs, I decided to provide a comprehensive overview of the changes to the Fair Labor Standards Act. Basically, despite Congressional challenges, new federal overtime rules are in effect that substantially change the overtime status of millions of American workers. The “Overtime Security Rule” is a revision of the Fair Labor Standards Act (FLSA) which was implemented by the Department of Labor (DOL) on August 23rd of this year. The revision of the FLSA represents only the third time that overtime rules have been updated since the FLSA went into effect in 1938. The last revision occurred in 1975.
How Have the Rules Changed?
The most significant changes in the 474-page revision of the FLSA are an increase in the salary cap of workers who are automatically eligible for overtime and a change in the determination of which employees are exempt from overtime pay.
Under the new rules, any employee who earns up to $23,660 per year is automatically guaranteed overtime whenever they work more than forty hours a week, regardless of their job duties. This is a substantial increase from the previous cap of $8,660 per year, and covers everyone from blue collar workers to clerical staff to managers, regardless of whether they are paid on an hourly or salary basis. The DOL estimates that this change will grant overtime protection to some 6.7 million workers nationwide.
The second change redefines which employees are considered exempt from overtime. Under the new rules, workers who make more than $23,660 per year are exempt from overtime if their duties are professional, administrative or executive. The law also generally excludes anyone who makes $100,000 per year or more from earning overtime, regardless of their duties or salary basis. Critics of the new rules estimate that this change will eliminate overtime protection for nearly 6 million workers.
Who’s Entitled to Overtime?
So how can an employer know for sure which employees should receive overtime? First, for employers who have employees covered by a collective bargaining agreement which gives them more generous rights to overtime than the new rules, the terms of the labor agreement supersede the new rules.
Second, employers should be aware of what the laws are in their particular state. In states that have different overtime provisions, employers must abide by whichever standards are more beneficial to the employee. States that have separate overtime regulations include: Alaska, Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Kentucky, Maryland, Minnesota, Montana, New Jersey, North Dakota, Oregon, Pennsylvania, Washington, West Virginia and Wisconsin. A quick trip to the web site for the DOL of the state will provide any desired information.
After taking these two factors into consideration, there are three major tests for determining overtime eligibility.
1.) How much does the employee earn? If the employee makes less than $23,660 per year ($455 a week), they are automatically entitled to overtime, regardless of their duties or salary basis.
2.) What is the employee’s salary basis? Employees who earn more than $23,660 per year and are paid on a “salary” basis are generally exempt from overtime. Salaried employees are paid a fixed salary per pay period, regardless of hours worked, as opposed to employees who are paid “by the hour”. Hourly employees are generally entitled to overtime pay.
3.) What are the employee’s duties? White collar employees who earn more than $23,660 per year are exempt from overtime if their duties are primarily managerial, administrative or professional.
“Managerial” employees are defined by the rules as those whose primary duty is the management of an enterprise (such as a department, store or subdivision), those who customarily and regularly direct the work of two or more other employees, and who have input into personal decisions such as hiring, firing, promotion, etc. (regardless of whether the employee has the sole discretion to do so). Unless otherwise guaranteed overtime by a collective bargaining agreement, employees in this category generally include: executive staff, managers, assistant managers, supervisors and team leaders.
“Administrative” employees are those whose primary duty is performing office or non-manual work directly related to the management or general business operations of the organization. Administrative employees also exercise “discretion and independent judgment”. Unless otherwise guaranteed overtime by a collective bargaining agreement, employees in this category generally include: administrative assistants, executive secretaries, school principals and vice-principals, school counselors, human resource staff, purchasing staff, public relations and quality control staff.
“Professional” employees are those who are “learned professionals” or “creative professionals”. “Learned professionals” are generally those whose jobs require advanced knowledge of science or some other field of learning which is gained through specialized intellectual instruction. “Creative professionals” are those who perform work requiring invention, imagination, originality or talent. Unless otherwise guaranteed overtime by a collective bargaining agreement, employees in the professional group include: restaurant chefs, nurses, financial service industry workers, insurance claims adjusters, teachers, lawyers, engineers, actors, musicians, dental hygienists, pharmacists, journalists and funeral directors.
The law also guarantees overtime to several groups of workers, regardless of salary or duties, including: blue collar workers (such as carpenters, craftsmen, construction workers, etc.), “first responders” (such as police officers, fire fighters, paramedics and EMTs), computer workers (such as system analysts and computer programmers), and inside sales employees.
For more information on determining which employees are exempt and non-exempt, check out the DOL’s website which includes listings by position and exemption type, exemption tests, fact sheets and frequently asked questions. The website is located at www.dol.gov/esa/regs/compliance/whd/fairpay.
What Steps Should Employers Take to Comply?
There are several steps all employers should take to ensure that their organization is in compliance with overtime rules.
1. Review your state law on overtime
2. Review the provisions of any collective bargaining agreements
3. Check the salary levels and salary status of employees
4. Revise job descriptions and clarify which employees are exempt
5. Train HR and payroll employees on the new rules
6. Consult with legal counsel as needed
Finally, before reclassifying employees as exempt under the new rules, be sure to consider the effect it will have on employee morale and retention. Employers always have the right to voluntarily pay overtime to any worker. As with any new rules, it’s only a matter of time before some of these new overtime provisions are challenged in court.
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