MENU

Tag: exempt

Hot Off the Press: New Overtime Rules

October 4, 2019

The Federal Labor Standards Act requires employers to pay overtime to employees who work over 40 hours in a workweek, unless the employee works in an “exempt” position. There are various classes of exempt employees, one of which is the executive, administrative and professional employees (i.e., the “white-collar” exemption). Generally, to qualify for the “white-collar” exemption, an employee:

  • must be paid a fixed weekly salary (the “salary basis test”), and

  • must primarily perform executive, administrative or professional duties in accordance with the Department of Labor regulations (the “duties test”).

Released on September 24, 2019 but effective January 1, 2020, the Trump Administration has announced its intention to revise the salary threshold for white collar employees and highly compensated employees. The new regulations do the following:

  1. Increase the threshold salary earnings for exempt executive, administrative and professional employees (i.e., the “white-collar” exemption) by 50% from $455 per week ($23,660 annually) to $684 per week ($35,568 annually) and for highly compensated employees from $100,000 annually to $107,432 annually.

  2. Allow employers to use non-discretionary bonuses and incentive payments, in kind commissions paid at least annually, to satisfy up to 10 percent of the salary threshold.

  3. Permit employers to make a “catch up” payment if an employee does not earn enough non-discretionary bonuses or incentive payments in a given year, as long as the payment is made within one payday of the end of the 52-week period.

  4. Omit any automatic updates to the salary threshold and instead reiterates its determination to update the earnings thresholds more regularly through notice-and-comment rulemaking.

Repercussions for Employers:

  1. Employers who fail to satisfy the minimum salary level will lose the exemption for their employees and be required to pay overtime at the legal rate.

  2. Thus, employers must immediately audit and reclassify affected employees in order to ensure overtime eligible employees are paid their due, that salaries are increased or other compensation is introduced to avoid overtime eligibility. The Department of Labor estimates that 1.3 million workers will become non-exempt when the proposed rule becomes effective, yours might be one of the 1.3 million to be affected.

    1. An audit would consist of reviewing payroll records for salary history, reviewing job descriptions for exempt/non-exempt classification, consider options to pay the affected employees more, or reassign their duties to avoid the need for overtime hours.

    2. An audit should also include a review and revision of benefit plans that determine eligibility and other metrics on salary or exempt/non-exempt status.

  3. Some states have thresholds higher than the federal even after this change, such as New York. Georgia follows the federal rules. Apply the rules appropriate to the state in which you have employees.

  4. Call our office or visit the Department of Labor’s website for more information on how to implement these changes in your workplace.

Storm Surges and Flash Flooding: A Few Employment Law Issues During Natural Disasters

September 17, 2018

You are an employer with a a goal set of each hour, day, week, month, quarter and year, maybe 5, 10, 50 years. But natural disasters such as hurricanes do not respect your goals; they are unpredictable and disruptive even to the most efficient workplaces. To minimize the havoc wreaked on your business by the strong storm, a well drafted human resource policy on issues relevant to bad weather is critical. This article addresses two key considerations to remain compliant with the law and to get back to business as soon as possible.

Wage and Hour

A natural disaster often forces a halt in business operations. However, the Federal Labor Standards Act (FLSA) does not relax or waive its rules during such a period. It requires employers to pay salaried exempt employees during a such a business closure if the employee worked at all during the relevant work week, no matter how briefly. To alleviate the cost to employers, the FLSA permits the employer to require employees to use their accrued and unused paid time off (PTO) during the shutdown. Non-exempt hourly employees on the other hand, may be paid for only the hours actually worked during a business shut down. The FLSA also expects that accurate records of employees’ time worked be persevered in a hurricane-proof format and continue to be kept as employees work through the event.

Employers should prepare clear policies governing this issue well in advance of having to apply its rules

Occupational Safety and Health

The Occupational Safety and Health Act requires employers to provide a safe workplace for their employees. Thus, employers must carefully assess the work space during and after natural disasters to ensure that buildings are structurally sound, hazardous materials are not exposed, amenities such a washrooms, air heating and cooling, first aid are fully functional, electrical wires are not damaged or exposed, mosquitoes and other pathogens are under control, among several other considerations.

OSHA permits employees to refuse dangerous work and to report dangerous working conditions. Dangerous conditions must be reported within thirty (30) days of its discovery and can be made via the OSHA website or over the telephone. Likewise an employee refusing dangerous work must do so promptly, and because OSHA does not recommend abandoning the worksite, the employee must work with management to address her concerns. 

Once again, clear policies on the issue drafted and provided to employees and managers in advance of a natural disaster is preferred.

5 Reasons Why Employers Settle Unpaid Overtime Claims

July 2, 2018

The Federal Labor Standards Act is very clear: all employees must be paid at least minimum wage for every hour worked and overtime pay for every hour worked over forty hours in a week. Unfortunately, even when employers do their absolute best to comply, compliance checks and balances fail, delegation to third party payroll processors fail, technology fail or human errors abound. If an employer find’s itself in this situations there are good reasons to settle the claim. Some of these are as follows:

  1. You made a mistake – such as deducting lunchtime from the number of hours worked per week even though you do not permit the employee to take a lunch break or the employee cannot halt work to take a lunch break, or failing to keep adequate time records in the first place
  2. A class action is no joke – should there be more than a few employees claiming unpaid overtime, whether their allegations are valid or not, the cost of defending such a suit would be enormous and if they’re successful, the costs of back pay and penalties can also be crippling
  3. Treble damages – this is legal speak for if found to be liable, you’ll pay double the unpaid wages owed. Hence if you’ve made a mistake (see reason number one above) – settlement for the amount owed without treble damages makes sense
  4. Attorneys Fees – the law provides for automatic entitlement to reimbursement for attorneys fees for all successful plaintiffs in such lawsuits, thus, if found to be liable you’ll pay double the unpaid wages owed, treble damages and attorneys fees incurred by the plaintiff (or plaintiffs – see number two above)
  5. Unwelcome visitors from the Department of Labor – the DOL will not launch a full investigation for an isolated case of unpaid overtime, trust me, I’ve tried to get them to do it; however if the employees can muster any semblance of a class or if you business has been reported systemically, expect a visit from some unwelcome visitors