The U.S. Department of Labor (DOL) has released a rule that significantly changes the determination of which executive, administrative, and professional (or “white-collar”) employees are entitled to overtime pay under the Fair Labor Standards Act (FLSA). The rule will make it more difficult for employers to classify employees as exempt from overtime requirements. In fact, the DOL estimates that 4.1 million salaried workers will become eligible for overtime when they work more than 40 hours in a week.
Employers may experience a tax consequence once these changes come into effect, as well, as their payroll tax liability will increase:
- When paying overtime to more employees who work in excess of 40 hours a week,
- When paying higher salaries to maintain overtime exemptions.
Changes to Current White-Collar Exemption Requirements
To qualify for a white-collar exemption from the overtime requirements under current federal law, an employee must generally satisfy these three tests:
- Salary basis test. The employee is salaried, meaning he or she is paid a pre-determined and fixed salary that’s not subject to reduction because of variations in the quality or quantity of work performed.
- Salary level test. The employee is paid at least $455 per week or $23,660, annually.
- Duties test. The employee primarily performs executive, administrative, or professional duties as defined in the Department’s regulations.
Neither job title nor salary alone can justify an exemption — the employee’s specific job duties and earnings must both meet applicable requirements.
Certain employees (most notably doctors, teachers, and lawyers) aren’t subject to either the salary basis or salary level tests. The current regulations also provide a relaxed duties test for certain highly compensated employees (HCEs) who are paid a total annual compensation of $100,000 or more and earn at least $455 per week.
Other Significant Changes
The current rules hadn’t been revised since 2004, prompting President Obama to call for updating it.
The revisions in the rule, which take effect December 1, 2016, mainly relate to the salary level test. The rule increases the salary threshold for exempt employees to the 40th percentile of weekly earnings for full-time salaried workers in the lowest-wage Census region (currently the South) — which translates to $913 per week or $47,476 per year for a full-year worker.
In response to what the DOL described as “robust comments” from the business community, the revised rule allows up to 10% of the salary threshold for non-HCE employees to be met by non-discretionary bonuses, incentive pay, and commissions, as long as these payments are made on at least a quarterly basis. In this case, an employee’s production or performance bonuses could push him or her over the threshold and into exempt status (assuming the other tests are satisfied).
The rule also updates the HCE threshold above which the relaxed duties test applies. It raises the level to the 90th percentile of full-time salaried workers nationally, or $134,004 per year.
The new rule continues the requirement that HCEs receive at least the full standard salary amount — or $913 — per week on a salary or fee basis without regard to the payment of non-discretionary bonuses and incentive payments. Such payments will, however, count toward the total annual compensation requirement.
The standard salary and HCE annual compensation levels will automatically update every three years to maintain the levels at the prescribed percentiles, beginning January 1, 2020. The DOL will post new salary levels 150 days before their effective date.
A Note about the Duties Test
The revised rule makes no changes to the duties test. In the proposed rule, the DOL had sought comments regarding the effectiveness of the test at screening out workers who aren’t bona fide white-collar workers.
But it determined that the new standard salary level and automatic updating will work with the duties test to distinguish between overtime-eligible workers and those who may be exempt. Also, as a result of the revised salary level, employers won’t need to consider the duties test as often — if a worker’s pay doesn’t satisfy the salary level test for exemption, the employer doesn’t need to bother with assessing the worker’s duties.
According to the DOL, employers have a range of options when it comes to complying with the changes to the salary level (although it doesn’t require or recommend any method). Options include:
Doing nothing. You might choose to do nothing if your white-collar workers fall short of the new salary level but don’t ever work more than 40 hours per workweek.
Raising salaries. You may want to raise the salaries of employees who meet the duties test, who have a salary near the new salary level, and who regularly work overtime. Paying them at or above the salary threshold will maintain their exempt status.
Paying overtime above a salary. You could continue to pay employees a salary covering a fixed number of hours, which could include hours above 40. For example, you might:
- Pay employees a salary for the first 40 hours of work per week and overtime for any hours over 40.
- Pay a straight-time salary for more than 40 hours in a week for employees who regularly work more than 40 hours, and pay overtime in addition to the salary. You will only be required to pay an additional half-time overtime premium for overtime hours already included within the salary, plus time and a half for hours beyond those included.
- Agree with the employee on a fixed salary for a workweek of more than 40 hours, with the salary including overtime compensation under certain conditions. Employees must always be paid based on the hours actually worked during the workweek, though, so salary adjustments may be necessary at times. This will likely work best for employees who consistently work the same amount of overtime every week.
- For employees with fluctuating hours, pay a fixed salary covering a fluctuating number of hours at straight time if certain conditions are met.
And, of course, you might reorganize workload distributions or adjust employee schedules to redistribute work hours in excess of 40 across current staff. You could also hire additional employees to reduce or eliminate overtime hours worked by your current staff.
If you need help interpreting the new overtime rule or in addressing compliance issues, please contact your Untracht Early advisor.