FLSA’s New Overtime Rules Are Right w Around the Corner: Are You Ready? Presented by: Your Name Kathy Helmke Title HR Government Affairs Director Organization MRA
MRA 2016 HR Conference
WHAT WE WILL DISCUSS TODAY Brief history and purpose of FLSA Comparison of final regulations to current requirements Review of exemptions Process and timeline to comply Steps employers need to take
2
MRA 2016 HR Conference – Session 2B
1
WHAT FLSA COVERS 01
03
Minimum wage
Youth employment standards
02
04
Overtime pay
Recordkeeping
3
EXEMPT STATUS – THE BASICS How an employee is paid Status of employee’s position Salaried Hourly
MRA 2016 HR Conference – Session 2B
Hourly or Salary Basis Nonexempt or Exempt Exempt Non‐exempt
2
EXEMPTIONS Executive Employees Administrative Employees Professional Employees • Learned w • Creative • Teachers
Computer Employees Outside Sales Employees
Three Criteria for Exemption Status Salary Basis Minimum Weekly Salary Threshold Duties Requirements
MRA 2016 HR Conference – Session 2B
3
SALARY BASIS
Exempt executive, administrative, professional, or computer employees must be compensated on a salary basis at a rate of not less than $455 per week
Computer employees may also qualify if they are compensated at least $27.63 per hour
7
SALARY BASIS 2004 Regulations
Proposed in 2015
2016 Final Regulations Effective December 1, 2016
Exempt executive, administrative $970 per week ($50,440 or professional per year) or computer employees compensated on a salary basis at a rate of not less than $455 per week
w
$913 a week ($47,476 per year) To be Updated every 3 years Equal to 40th Percentile of earnings of FT Salary Workers in the lowest‐wage census region of US
Computer employees compensated at Unchanged least $27.63 per hour
Unchanged
Highly compensated employees performing office or non‐manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis)
$134,004
MRA 2016 HR Conference – Session 2B
$122,148 per year (which must include at least $970 per week paid on a salary or fee basis)
4
PRIMARY DUTY Principal, main, major or most important duty that the employee performs.
JOB DUTIES 2004 Regulations
Proposed in 2015
2016 Final Regulations Effective December 1, 2016
Generally, the “majority” of work must be exempt level work, but time alone is not determinative
Unchanged
Unchanged: the DOL believes that the increased
MRA 2016 HR Conference – Session 2B
salary threshold ensures that employees who meet the salary threshold are most likely primarily performing exempt work. For workers with salaries w above the updated salary level, employers will continue to use the same duties test to determine whether or not the worker is entitled to overtime pay.
5
NONDISCRETIONARY BONUSES/ INCENTIVE PAYMENTS 10% cap on amount
Input requested from stakeholders
Must be paid at least quarterly Catch Up Payment‐ end of each quarter
FINAL REGULATIONS: TIMELINE Release date of May 17, 2016
All employers must be in compliance by the effective date Effective December 1, 2016
MRA 2016 HR Conference – Session 2B
6
WHAT SHOULD EMPLOYERS DO? 01
03
Review and update current job descriptions
Identify jobs currently classified as exempt that will be impacted by the new rule
02
04
Review classifications to ensure they are consistent with what the FLSA requires Determine how changes will be implemented
REVIEW AND UPDATE CURRENT JOB DESCRIPTIONS
Up‐to‐date?
Accurately reflect the duties performed?
MRA’s FLSA Toolkit has updated job description template
MRA 2016 HR Conference – Session 2B
7
REVIEW POSITIONS FOR FLSA EXEMPTIONS
Executive Employees Professional Employees • Learned • Creative w• Teachers
Computer Employees Outside Sales Employees Administrative Employees
EXECUTIVE EXEMPTION Primary duty is to: Manage the enterprise in which the employee is employed or manage a customarily recognized department or subdivision thereof;
Customarily and regularly direct the work of two or more other employees; and
Have the authority to hire or fire other employees or make suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
16
MRA 2016 HR Conference – Session 2B
8
Executive Exemption Management activities include:
Interviewing Selecting and training of employees Setting and adjusting employee rates of pay and hours of work Directing work Maintaining production or sales records for use in supervision or control Appraising employee productivity and efficiency for the purpose of recommending promotions or other changes in status Handling employee complaints and grievances Disciplining employees Planning work Determining work techniques Apportioning work among employees Determining the type of materials, supplies, machinery, or tools to be used or merchandise to be bought, stocked, or sold Controlling the flow and distribution of materials or merchandise and supplies Providing for the safety of employees and the property Planning and controlling the budget Monitoring or implementing legal compliance measures 17
EXECUTIVE EXEMPTION: Quick Assessment The employee MUST supervise two or more full‐time employees. What to assess: The specific “management” duties the employee performs. If the employee does not supervise two or more full‐ time employees, the employee does not meet the executive exemption. If the employee supervises two or more employees but does not manage a department or department unit/subdivision, the employees does not meet the executive exemption. How to assess: Review the organization’s and/or department’s organizational chart. 18
MRA 2016 HR Conference – Session 2B
9
PROFESSIONAL EXEMPTION Primary duty: Involves work requiring knowledge of an advanced type in field of science or learning customarily acquired by prolonged course of specialized intellectual instruction, or Involves work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor, or Involves teaching, tutoring, or instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment
19
PROFESSIONAL EXEMPTION Examples of jobs that fulfill the “knowledge of an advanced type in field of science or learning customarily acquired by prolonged course of specialized intellectual instruction” requirement:
Architecture Teaching Various types of physical, chemical, or biological sciences Pharmacy
Medicine Theology Accounting Actuarial computation Engineering
20
MRA 2016 HR Conference – Session 2B
10
Professional Exemption: Quick Assessment The employee MUST have a minimum of a Bachelor’s Degree in a field related to the work that the employee will perform. What to assess: The degree required. If an employee may be promoted into the position without a four‐year degree, or the degree may be in any number of fields (for example, Business, Liberal Arts, Fine Arts), the learned professional exemption will not apply. How to assess: Review the minimum educational qualifications of the job. 21
PROFESSIONAL EXEMPTION: Quick Assessment The employee MUST have a minimum of a Bachelor’s Degree in a field related to the work that the employee will perform. What to assess: The degree required. If an employee may be promoted into the position without a four‐year degree, or the degree may be in any number of fields (for example, Business, Liberal Arts, Fine Arts), the learned professional exemption will not apply. How to assess: Review the minimum educational qualifications of the job. 22
MRA 2016 HR Conference – Session 2B
11
COMPUTER JOBS EXEMPTION
Primary duty involves one or a combination of the following:
Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
Design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including w prototypes, based on and related to user or system design specifications;
Design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a
Combination of the aforementioned duties, the performance of which requires the same level of skills.
COMPUTER JOBS EXEMPTION: Quick Assessment The employee MUST be a: computer systems analyst, programmer, software engineer, or other similarly skilled worker in the computer field. What to assess: Job duties. Employees in the manufacture or repair of computer hardware and related equipment do not qualify for the exemption, nor do help desk employees, drafters and others skilled in computer‐aided design software. How to assess: Review the essential functions of the job.
24
MRA 2016 HR Conference – Session 2B
12
OUTSIDE SALES EXEMPTION
Primary duty is: Making sales or Obtaining orders or contracts for services or for the use of facilities for which a consideration will be w paid by the client or customer; and Who is customarily and regularly engaged away from the employer’s place or places of business in performing his/her primary duty.
OUTSIDE SALES EXEMPTION: Quick Assessment The employee MUST be regularly away from the employer’s place of business (which includes the employee’s home if the employee works from home).
What to assess: The frequency of visiting customers. Employees must visit customers at the customers’ facilities on more than an occasional, but less than constant, basis. Outside sales does not include sales made by mail, telephone or the Internet unless this contact is done in connection with sales made by personal contact. Finally, drivers who sell qualify for the outside sales exemption only if their primary duty is the sale of the employer’s product rather than driving. How to assess: Evaluate the percentage of time that the sales person is in your office. Does the sales person have an office or a workstation?
MRA 2016 HR Conference – Session 2B
13
ADMINISTRATIVE EXEMPTION
Primary duty is the: Performance of office or non‐ manual work directly related to the management or general business operations of the employer or the employer’s w customers; and Includes the exercise of discretion and independent judgment with respect to matters of significance.
ADMINISTRATIVE EXEMPTION
The phrase “...directly related to management policies or general business operations….” means that administrative exempt employees “…must perform work directly related to assisting with the running or servicing of the business.” w The term “discretion and independent judgment” involves “…the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered.”
MRA 2016 HR Conference – Session 2B
14
ADMINISTRATIVE EXEMPTION “Discretion and independent judgment” includes the following actions.
Does the employee… Have the authority to formulate, affect, interpret, or implement management policies? Carry out major assignments in conducting the operations of the business? Perform work that affects business operations to a substantial degree? Have the authority to commit the employer in matters that have significant financial impact? Have the authority to waive or deviate from established policies and procedures without prior approval?
Have the authority to negotiate and bind the company on significant matters? Provide consultation or expert advice to management? Perform work that involves planning long or short term business objectives? Investigate and resolve matters of significance on behalf of the employer? Represent the company in handling complaints, arbitrating disputes, or resolving grievances?
ADMINISTRATIVE EXEMPTION: Quick Assessment The answer MUST be “Yes” to ALL of the following: The position is an office job that is performed in every organization (for example, Marketing, HR, Legal, or Accounting).
There would be significant consequences to the organization (not simply to the department) if the work were not performed. The employee has the authority to negotiate and bind the company on significant financial matters. The work is important and key to the organization’s success.
What to assess: The employee’s decision‐making authority. If the employee (1) regularly performs work of a repetitive nature, (2) has a low‐level spending limit on how much he/she may negotiate on behalf of the company, (3) does not make policy, and (4) may not deviate from policy without prior approval, the employee most likely does not meet the administrative exemption. How to assess: Review the employee’s specific job duties.
MRA 2016 HR Conference – Session 2B
15
PUTTING IT ALL TOGETHER: EXERCISE Org chart
Essential functions
Number of employees supervised
Types of decisions
Educational requirements
31
MARKETING ORGANIZATIONAL CHART Jane, Marketing Manager
Ken, Marketing Supervisor
Employee
Employee
Employee
32
MRA 2016 HR Conference – Session 2B
16
DUTIES PERFORMED: MARKETING MANAGER
Serves as the key contact person in the organization for all marketing‐related matters Plans and manages the organization’s marketing strategy Recommends new marketing initiatives to Acme executives Responsible for managing the marketing department
Has final authority on the selection and hiring
Conducts employee performance reviews and approves salary adjustments Conducts or oversees employees’ progressive discipline, up to and including terminations
w of new employees
Approves all terminations
Plans and manages the unit budget Responsible for legal and regulatory compliance
The minimum educational requirement for the position is a Bachelor’s Degree in Marketing or related field
WHICH EXEMPTIONS APPLY?
MRA 2016 HR Conference – Session 2B
Executive Professional Computer Outside Sales Administrative
17
Exemption Summary Position
Executive (Y/N), Rationale
Professional (Y/N), Rationale
Computer (Y/N), Rationale
Outside Sales (Y/N), Rationale
Administrative (Y/N), Rationale
A. B. C.
35
IDENTIFY JOBS LIKELY IMPACTED BY NEW RULE Salary
Maybe duties
MRA 2016 HR Conference – Session 2B
18
BELOW SALARY OF $970/WEEK Raise salaries to new minimum level and retain exempt status Determine financial impact
Re‐classify as nonexempt Calculate new hourly rate Review Handout MRA’s FLSA Toolkit has calculator to assist in determining financial impact of salary changes
DETERMINE HOW CHANGES WILL BE IMPLEMENTED 01
03
Across the entire company
By functional area
MRA 2016 HR Conference – Session 2B
02
04
By department
On case‐by‐case basis
19
CONSEQUENCES OF NON‐COMPLIANCE Department of Labor actions • Investigations • Lawsuits for unpaid overtime wages and an equal amount as wliquidated damages • Injunctions to restrain any person from violating the FLSA • May require employer to change employment practices
CONSEQUENCES OF NON‐COMPLIANCE Individual action Employee lawsuit for back pay and an equal w amount as liquidated damages, plus attorney’s fees and court costs
MRA 2016 HR Conference – Session 2B
20
CONSEQUENCES OF NON‐COMPLIANCE
Penalties and sanctions Willful violations of the FLSA may be prosecuted criminally and the employer fined up to $10,000, w Second conviction may result in imprisonment. Employers who willfully or repeatedly violate overtime pay requirements are also subject to a civil money penalty of up to $1,100 per violation
CONSEQUENCES OF NON‐COMPLIANCE Statute of Limitations The DOL will investigate claims going back three years from the date the w claim is filed for willful violations of the FLSA, and two years for claims where no such “willfulness” is apparent.
MRA 2016 HR Conference – Session 2B
21
CONSEQUENCES OF NON‐COMPLIANCE
Back wages
Changes in w employment practices
CONSEQUENCES OF NON‐COMPLIANCE
Willful violations may be prosecuted criminally and fined up to $10,000 Second conviction may result in imprisonment w
Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,100 per violation
MRA 2016 HR Conference – Session 2B
22
QUESTIONS COMMENTS w
Thank you! Visit us at www.mranet.org
We’re social!
Follow us on your favorite social networks
MRA 2016 HR Conference – Session 2B
23
Three Criteria for Exemption Status Salary Basis Minimum Weekly Salary Threshold Duties Requirements
Three Criteria for Exemption Status Salary Basis Minimum Weekly Salary Threshold Duties Requirements
MRA 2016 HR Conference – Session 2B
24
SALARY BASIS
Exempt executive, administrative, professional, or computer employees must be compensated on a salary basis at a rate of not less than $455 per week
Computer employees may also qualify if they are compensated at least $27.63 per hour
49
SALARY BASIS 2004 Regulations
Proposed in 2015
2016 Final Regulations Effective December 1, 2016
Exempt executive, administrative or professional or computer employees compensated on a salary basis at a rate of not less than $455 per week
$970 per week ($50,440 per year)
$913 a week ($47,476 per year)
w
To be Updated every 3 years Equal to 40th Percentile of earnings of FT Salary Workers in the lowest‐wage census region of US
Computer employees compensated at least $27.63 per hour
Unchanged
Unchanged
Highly compensated employees performing office or non‐manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis)
$122,148 per year (which must include at least $970 per week paid on a salary or fee basis)
$134,004
MRA 2016 HR Conference – Session 2B
25
PRIMARY DUTY Principal, main, major or most important duty that the employee performs.
JOB DUTIES 2004 Regulations
Proposed in 2015
2016 Final Regulations Effective December 1, 2016
Generally, the “majority” of work must be exempt level work, but time alone is not determinative
Unchanged
Unchanged: the DOL believes that the increased
MRA 2016 HR Conference – Session 2B
salary threshold ensures that employees who meet the salary threshold are most likely primarily performing exempt work. For workers with salaries w above the updated salary level, employers will continue to use the same duties test to determine whether or not the worker is entitled to overtime pay.
26
NONDISCRETIONARY BONUSES/ INCENTIVE PAYMENTS 10% cap on amount
Input requested from stakeholders
Must be paid at least quarterly Catch Up Payment‐ end of each quarter
FINAL REGULATIONS: TIMELINE Release date of May 17, 2016
All employers must be in compliance by the effective date Effective December 1, 2016
MRA 2016 HR Conference – Session 2B
27
Scenario: Transitioning Pay Joe is currently classified as exempt and is paid a weekly salary of $600.00 (the equivalent of $31,200/year) and works an average of 45 hours/week. Joe’s position is being reclassified as nonexempt.
Options
Pros
1: Exempt Salary to Nonexempt Hourly Approach, based on 40 hour/week schedule:
Simple way to calculate Higher wage costs for company: an hourly rate Regular Rate ($15.00 X 40 hours) = $600.00 Overtime Rate ($15.00 X 1.5) =$22.5 X 5 Easy to communicate hours= $112.50 and understand Total Pay ($600.00 + 112.50) = $712.50 weekly, and $37,050.00 annually, resulting in annual Higher morale for increase of $5,850.00 ($37,050.00 ‐ employee overtime $31,200.00)
Regular Rate of Pay = $600.00/40 hours = $15.00 Overtime Rate of Pay = $15.00 X 1.5 =$22.5
2. Exempt Salary to Nonexempt Hourly Approach , with consideration of regular hours worked over 40: Regular Hours = 40
Most closely represents what the employer is currently paying employee on weekly basis
Overtime Hours = 5 total hours per week = 45 Regular Rate of Pay = $600.00/45 hours= $13.33/hour Overtime Rate of Pay = $13.33 X 1.5 overtime premium = $20.00/hour X 5 hours $100
3. Combination Salary and Hourly Approach: Employees receives salary representing straight‐time pay for all hours worked in a workweek. (Note: Nonexempt employees are allowed to be paid a set or fixed salary per week; however they must be compensated for any time worked over 40 in a workweek.) Employer first needs to set the fixed regular weekly salary (for this example, the agreement between the employer and employee is that the salary will be $600.00/week). Since this salary constitutes wages at straight time for all hours worked, the employers would still owe an additional half‐time for any hours the employee works in excess of 40 in a workweek. If employee works 45 hours, the calculation is as follows: Regular Rate of Pay: $600/45 hours = $13.33 Overtime Rate of Pay= $13.33/2 = $6.67 (since all hours have already been paid at straight‐time, the employer only needs to account for the “half” time.) Overtime Pay= 5 hours X $6.67=$33.35
Reduces impact of the potential increased labor costs on the employer
Guarantees employee a fixed salary (something he is already accustomed to) while also compensating employee for hours worked over 40.
Cons
Requires employer to recalculate every exempt employee’s regular rate based on regular hours worked over 40. It is possible that one employee may have averaged 45 hours while another might have averaged 50 hours. Difference in hours may have a significant impact on the hourly rate employees in similar position receive May negatively affect morale Higher wage costs for company: Regular Rate ($13.33 X 40 hours) = $533.20 Overtime Rate = $13.33 X 1.5 overtime premium = $20.00/hour X 5 hours $100 Total Pay ($533.20 + $100) = $633.20 weekly, and $32,926.40 annually, resulting in annual increase of $1,726.40 ($32,926.40 ‐ $31,200.00) Requires employer to establish a fixed minimum salary for 40 hours which must be paid even if employee only works 35 hours in a workweek May negatively affect morale: If employee works between 40 and 45 hours, total wages would be lower than what employee was accustomed to when he was exempt. Higher wage costs for company: Weekly Earnings= $600.00 Salary + $33.35 Overtime = $633.35 or $32,934.20 Annually Result: Annual increase of $1,734.20 ($32,934.20 ‐ $31,200.00)