On September, 24, 2019, the U.S. Department of Labor (DOL) revealed its long-awaited final rule, establishing that employees who make less than $35,568 are now eligible for overtime pay. The new rate will take effect Jan. 1, 2020.
Pursuant to the Fair Labor Standards Act (FLSA), employees must be paid a salary of at least the threshold amount and meet certain job duties tests. If they are paid less or do not meet the job duties tests, they must be paid 1 1/2 times their regular hourly rate for hours worked in excess of 40 in a workweek.
The New Rule
The new rule will raise the salary threshold to $684 a week ($35,568 annualized) from $455 a week ($23,660 annualized). The new rule is expected to prompt employers to reclassify more than a million currently exempt workers to nonexempt status and raise pay for others above the new threshold.
A new change under the rule is that nondiscretionary bonuses and incentive payments (including commissions) paid on an annual or more frequent basis may be used to satisfy up to 10 percent of the standard salary level.
In addition to raising the salary cutoff for exempt workers, the new rule raises the threshold for highly compensated employees from $100,000 a year to $107,432 (of which $684 must be paid weekly on a salary or fee basis). The increase is about $40,000 less than what the DOL initially proposed because it is based on the 80th percentile, rather than the 90th percentile, of all full-time salaried workers’ earnings nationwide.
For the FLSA’s executive, administrative and professional exemptions—the so-called white-collar exemptions—employees must perform certain duties and earn at least the salary threshold. But under a special rule, highly compensated employees are eligible for exempt status if they meet a reduced duties test as follows:
- The employee’s primary duty must be office or nonmanual work.
- The employee must “customarily and regularly” perform at least one of the bona fide exempt duties of an executive, administrative or professional employee.
Employers should note that the rule doesn’t make any changes to the job duties tests.
Unlike the version of the rule sought by the Obama Administration, the new rule does not call for automatic adjustments to the salary threshold. However, the DOL “intends to update these thresholds more regularly in the future,” according to the final rule.
Employers should immediately pull data for exempt workers earning below the threshold. It will be important to review budgets and forecast the financial ramifications for changes in labor costs necessitated by the new rule. Part of this analysis should consider what positions that might need restructuring, considering whether to make certain positions nonexempt or give a salary increase. Finally, there is very little time before the new rule becomes effective, so consider the timing for implementing changes.
Meeting the salary cutoff is just one requirement for classifying workers as exempt. Employers should also take the time to review workers’ job duties to ensure that they satisfy the applicable exemption’s criteria.
The white-collar exemptions each have slightly different duties tests:
- Executive exemption. The employee’s primary duty must be managing the enterprise or a department or subdivision of the enterprise. The employee must customarily and regularly direct the work of at least two employees and have the authority to hire or fire workers (or the employee’s suggestions and recommendations as to hiring, firing or changing the status of other employees must be given particular weight).
- Administrative exemption. The employee’s primary duty must be office or nonmanual work that is directly related to the management or general business operations of the employer or the employer’s customers. The employee’s primary duty also must include the exercise of discretion and independent judgment with respect to matters of significance.
- Professional exemption. The employee’s primary duty must be work requiring advanced knowledge in a field of science or learning that is customarily acquired by prolonged, specialized, intellectual instruction and study.
Although the changes to the overtime rule are all about salary, the upcoming adjustments provide a good opportunity for employers to look at the job duties for their lowest exempt pay bands and make sure they actually qualify and correct any errors on the job duties side.
Training and Communications Strategy
If employers decide to reclassify employees to nonexempt status, they will need to track affected workers’ work time and pay overtime premiums for all hours worked beyond 40 in a workweek.
Employers will need to develop a communication strategy and make sure that reclassified employees know they are not being demoted. Be clear that these changes are based on new government rules.
In addition, employees who will be required to track their hours for the first time—as well as their managers—will need training on time-keeping procedures. Employers should evaluate their systems for time-keeping, tracking overtime and paying bonuses and develop plans and procedures to manage or limit overtime hours worked by newly nonexempt workers.