2019 FLSA Proposed Overtime Rule

In early March 2019, the Federal Department of Labor proposed an increase in the salary-level threshold for white-collar exempt positions.  The current exemption level at the federal level is $23,660, the proposed exempt threshold is $35,308.  “If finalized, the new overtime rule would result in the reclassification by employers of more than a million currently exempt workers as nonexempt and an increase in pay for others above the new threshold. The proposal does not call for automatic adjustments to the salary threshold, does not create different salary levels based on region of the country and does not make any changes to the duties tests.”[i]

Area’s to Consider under the Current Proposal:

1. Reclassification: In New York State for Administrative and Executive Exemptions, we have nothing to adjust on levels. However, for the Professional Exemption, it is recommended to review and make the necessary adjustments for your organization.  Options include, implementing restrictive overtime policies, reduce to part-time status and/or reassign tasks to other employees.  Reclassification from exempt to nonexempt is challenging, from my experience this does not go over well with the employee and it is viewed as a demotion.  Prior to making a decision, review all options and do what is best for the organization and the workforce.
2. Increase Pay: We always have the option to bump pay for the classifications that will be impacted by this change significant change. Review budgets and pay equality within your organization prior to adjusting pay.  Put it in writing, with a signed offer letter and/or the required wage notification form.
3. Adjust or Not to Adjust, at this Point: That is the question. Review all options prior to making any adjustments.  This is a proposal, it will embark on a long, inefficient process prior to being passed into law, if ever passed.  Continue to monitor for updates and changes to the proposed language.  The change is coming, just as we will more than likely see changes to the federal minimum wage levels.  Seek guidance if you are unclear on classification definitions and wage levels.  State and federal laws do vary.  “In New York, the state’s minimum salary threshold for executive and administrative employees has been increased in phases, and the actual rate depends on geographic location and employer size. For example, the threshold is currently $58,500 (annualized) for employees who work in New York City for large employers and fast-food restaurants and $52,650 for workers at other businesses with 10 or fewer employees. In Nassau, Suffolk and Westchester counties, the threshold is $46,800, and in other areas of the state it’s $43,264.”[ii]

“Employers should note that the DOL’s $35,308 threshold is just a proposal and must go through the formal rulemaking process, which includes a comment period. Employers—and other interested members of the public—that wish to comment on the proposal may do so by visiting www.regulations.gov. They will have 60 days to comment from the time the rule is published in the Federal Register. For now, the FLSA salary threshold is still $23,660 for the white-collar exemptions.”[iii]

“Executive and Administrative Exemption:

• $727.50 per week on and after 12/31/16
• $780.00 per week on and after 12/31/17
• $832.50 per week on and after 12/31/18
• $885.00 per week on and after 12/31/19
• $937.50 per week on and after 12/31/20[iv]

“The 6 exempt level definitions under the FLSA:

Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

1. The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees. The link(s) goes into specific duties tests on the exemptions.  NY State Law
2. The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance. NY State Law
3. The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
4. Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs. This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test.
5. The Outside Sales Exemption: Primary duties must include making sales, obtaining orders or contracts.  The employee must be regularly engaged away from the employer’s place of business.
6. The Highly Compensated Employees Exemption: Perform office or non-manual work and paid total annual compensation of $100,000 or more. They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.  The new salary cutoff is proposed at $147,414, almost a $50,000 jump in classification levels.
7. Other Definitions: Blue Collar Worker

Police Officers, Fire Fighters and First Responders”[i]

NYC Bans Hairstyle Discrimination:

“New York City has issued the country’s first-ever ban on employer policies and practices that discriminate against how black people wear their hair…Guidelines from the New York City Commission on Human Rights state that while employers can impose requirements around maintaining a work-appropriate appearance, a grooming policy that prohibits dreadlocks, cornrows, Bantu knots and other such hairstyles will be considered racial bias. The law does not apply to employers with fewer than four employees…Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with black communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns,” according to the guidelines. “An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”[ii]

Michigan Paid Medical Leave Act Effective March 29, 2019:

The Paid Medical Leave Act requires covered employers to provide paid sick leave to many of their Michigan-based employees.

– Matthew Burr, HR Consultant

[i] Burr Consulting, LLC Article April 16, 2018

[ii] SHRM Email March 11, 2019

https://labor.ny.gov/formsdocs/wp/Part142.pdf\”[v]

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/New-FLSA-Overtime-Rule-Proposal-Expands-Worker-Coverage.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-not-ignore-state-overtime-exemption-rules.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-not-ignore-state-overtime-exemption-rules.aspx

[iv] https://labor.ny.gov/formsdocs/wp/Part142.pdf

[v] Burr Consulting, LLC Article December 21, 2018