FLSA Resource Guide. October Cascade Employers Association

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1 FLSA Resource Guide This guide is intended to help you comply with new rules under the Fair Labor Standards Act regarding overtime and employee classifications. October 2016 Cascade Employers Association

2 New Fair Labor Standards Act Rules Take Effect December 1, 2016 $455 per week ($23,660 per year) CURRENT MINIMUM EXEMPT SALARY $913 per week ($47,476 per year) NEW MINIMUM EXEMPT SALARY 2 Cascade Employers Association

3 The Details Duties Test: Until Nov. 30: Final Rule: Executive, Administrative, Professional There are no changes to the duties requirements. Salary Threshold Adjustments: Until Nov. 30: Final Rule: None Every 3 years based on 40 th percentile in lowest wage Census region (First increase on January 1, 2020) Inclusion of Bonuses: Until Nov. 30: Final Rule: None Up to 10% of the salary can come from non-discretionary bonuses, incentive payments and commissions. Paid quarterly. Highly Compensated Employee Exception: Until Nov. 30: Final Rule: $100,000 per year $134,004 per year (Does NOT apply in Oregon) Cascade Employers Association 3

4 Classifying Employees Under the New Rules In order for an employee to be considered exempt from overtime under the FLSA, an employee must: 1. Be paid a guaranteed salary of $913 per week, and 2. Their job duties must fall into one of the white collar exemptions. a. Executive b. Administrative c. Professional Job titles do not determine exempt status. Paying a salary does not automatically make an employee exempt. An individual must meet both the salary and job duty requirements in order to be exempt. 1 The new rules do not change any of the job duties requirements. The rules only change the minimum salary threshold. 1 There are limited exceptions in which the salary requirements do not apply such as teachers, doctors, lawyers, and outside sales positions. Those positions are not affected by the new rules. 4 Cascade Employers Association sociation

5 The Exemptions (a): Executive i. Primary duties (more than 50%) are related to management of the business ii. Supervises two or more full-time employees, which includes the exercise of independent judgment and discretion, including scheduling and assigning work and includes authority to hire, fire, promote, and approve pay increases. (Two half-time employees are equivalent to one full-time employee.) iii. Customarily and regularly exercises authority to make decisions of significance. (b): Administrative i. Primary duties (more than 50%) are office or non-manual work that directly affects management policies or general business operations; and, ii. Requires the regular exercise of independent judgment and discretion; and, iii. Is performed in the course of directly assisting an owner or executive; or, iv. Is undertaken in the course of performing highly specialized or technical work under only general supervision. (c): Professional i. Primary duties (more than 50%) consist of work requiring advanced knowledge in a field of science or learning acquired by a prolonged course of specialized intellectual instruction, and which is distinguished from a performance of routine mental, manual or physical processes; or ii. Primary duties (more than 50%) consist of work that is original and creative in character in a field of endeavor and the results of which depend primarily on the invention, imagination or talent of the employee. iii. Consistently exercise discretion and independent judgment. Cascade Employers Association 5

6 Employee Communications Communicating with employees early on about how the new rules could impact them should be considered a priority. (What? When? Who? How?) 6 Cascade Employers Association

7 Communications What needs to be communicated? Provide an initial communication explaining basic information on the FLSA changes. This communication should introduce the change to your employees and provide them with information on who they can contact with questions and/or concerns. Once decisions about changes are made, provide a second communication. A reclassification communication should go to employees who will be reclassified, and address the changes and provide information on who they can contact with questions and/ or concerns. This should also explain what company policies may apply differently such as timekeeping, getting approval before working overtime, rest and meal periods, etc. When should this be communicated? Generally, providing as much advanced notice as possible is the best approach. If an employee is going to be reclassified from exempt to non-exempt, providing at least 30 days notice is recommended. This allows time for their questions to be answered as well as familiarizing them with the various company policies that may apply differently. Also consider scheduling the employee time with their manager or Human Resources to review company policies and get new acknowledgments signed for their personnel file. Cascade Employers Association 7

8 Communications Who should communicate this? This depends on many factors such as the size of your organization, reporting structures and who is actually familiar enough with the FLSA and employee classifications to be able to effectively and accurately communicate about this. Typically, this type of communication would come from managers and Human Resources. Who should this be communicated to? This depends on factors such as the size of your organization and the number of people that will be reclassified. If only a few people will be impacted, it may be appropriate to simply notify those experiencing the change. If the change will be impacting the workflow, workload, process, etc. of a significant amount of other employees, then companywide notification might be a good idea. How should this be documented? A copy of all communications should be placed into the personnel files of those employees subject to a change in pay or classification. A personnel action notice or change in status form should also be completed detailing the change and effective date and placed in the employee s personnel file. As previously mentioned, employees should be provided a copy of the policies that will apply differently as a newly exempt employee. A signed acknowledgement of these documents and policies should be placed in their personnel file. 8 Cascade Employers Association

9 Application of Company Policies Transitioning from exempt to non-exempt may prove to be challenging for some employees. Exempt employees typically are not tracking the hours they work, don t worry about rest and meal periods, often don t worry about reporting overtime or hours worked outside of normal working hours and the list goes on. This mentality puts employers at risk of wage and hour violations. Accordingly, make sure your policies are updated and accurately reflect your practices. Review these policies with newly non-exempt employees. Don t forget to have the employee sign a new acknowledgement of the policies. Cascade Employers Association 9

10 Policies COMPENSABLE TIME Newly non-exempt employees may be confused about what is considered compensable time. You can tell them it s just about everything. Make sure to review everything that must be tracked and recorded in your timekeeping system. This includes everything from taking calls and s after hours to travel time. RECORDING HOURS Exempt employees are generally not used to tracking and recording their hours. Train your newly non-exempt employees on what they need to be tracking and how to track it with your timekeeping system. OVERTIME Exempt employees are likely used to working over 40 hours per week without needing approval or having to track their hours. If your policy requires approval before performing overtime, this expectation should be clearly communicated. Some companies are also subject to daily overtime rules which should be reviewed as well. REST AND MEAL PERIODS It s important for employees to know that rest and meal periods are mandatory for non-exempt employees in Oregon. Rest and meal periods can t be waived, combined, or skipped. Meal periods are typically unpaid and must be an uninterrupted period of time. Educate your employees about these issues and make sure they know how to record this time in your timekeeping system. REMOTE WORK If employees have had the ability to perform work remotely or off the clock, be clear if that is still acceptable as a non-exempt employee. If it is, review your policies and expectations about remote work and be clear about how that time needs to be tracked and recorded. If non-exempt employees are not allowed to perform work remotely or off the clock, it is important to make that expectation clear. This is especially important when technology gives us the ability to have instant access to work s, networks, etc. TIME OFF Some employers allow exempt employees more flexibility with their time off than non-exempt employees. For example, they may not require exempt employees to use sick, vacation or PTO unless the employee is going to take more than four hours off, or some variation thereof. Whereas non-exempt employees are generally required to use their sick, vacation or PTO if they want to be paid for any amount of time off they take. Be clear about how your time off policies apply if they differ between exempt and non-exempt employees. TRAINING AND TRAVEL TIME There are many rules regarding how training and travel time is compensated for non-exempt employees. If your non-exempt employees will be traveling away from the office, even occasionally, be sure they know how to track and record it. ON-CALL TIME Some types of on-call work must be tracked and compensated. Exempt employees don t need to track these hours for wage and hour purposes, but nonexempt employees may need to. If a non-exempt employee will be performing on-call work, be clear about what needs to be recorded as hours worked. 10 Cascade Employers Association

11 FAQs If I pay an employee at least $913 per week, does that make them exempt? No. In order for the employee to be exempt they must be paid a guaranteed salary of at least $913 per week and their job duties must meet one of the white collar exemptions (executive, administrative, professional). Do I still have to pay at least $913 per week if the employee s annual salary is $47,476? Yes. The FLSA requires a guaranteed weekly salary of at least $913. What is a non-discretionary bonus? Non-discretionary bonuses or incentive plans are designed to incent certain performance or other goals. They are paid based on a fixed formula. Sales commissions are a type of non-discretionary bonus or incentive plan. Discretionary bonuses (not allowed to be included under the FLSA) are at the discretion of the employer and not tied to predetermined standards or goals. How much of an employee s salary can come from an incentive plan or nondiscretionary bonus? No more than 10% of the employee s salary in the preceding 13 weeks can come from an incentive plan or non-discretionary bonus. Our incentive plan is paid out on an annual basis. As long as the amount doesn t exceed 10% of their annual salary we re in compliance, right? No. The FLSA requires payments under these plans on a quarterly basis. What happens if the employee didn t earn enough under the incentive or bonus plan to earn $913 per week? If the employee does not earn enough through the bonus or incentive to meet the minimum salary threshold ($913 per week) then a catchup payment may be made at the end of each quarter. The catchup payment must be made within one pay period and counts toward previous quarter s salary only. If no catchup payment is made, the employee is entitled to overtime pay for any overtime hours worked in the previous quarter. Cascade Employers Association 11

12 FAQs I work for a non-profit organization. Do these new rules apply to us? Most likely, yes. Employees are covered by the FLSA through either enterprise or individual coverage. Employees will be covered through enterprise coverage if the organization does $500,000 or more in sales or business done. For example, a non-profit organization operates a thrift store selling donated goods. This organization is engaging in commercial activities by selling goods. If it generates $500,000 or more in sales it will be covered under the FLSA. The second way employees are covered under the FLSA is through individual coverage, even if the organization doesn t have enterprise coverage. Individual coverage applies to any employee that regularly engages in interstate commerce activities. This includes basic activities like making calls or s to other states, online purchases for things such as supplies and other routine activities that most employees regularly engage in. I have a part-time exempt employee. Can I pro-rate the $913 per week due to their part-time status? Not if you want to maintain them as an exempt employee. Even a part-time exempt employee must be paid a guaranteed salary of at least $913 per week. Are agricultural workers affected by this change? The final rule only pertains to the regulations for the white collar exemptions (executive, administrative, professional) and does not change anything for agricultural workers unless the worker qualifies for exemption under one of the white collar exemptions. Do the new salary rules apply to outside sales positions? The salary requirements do not apply to outside sales positions. As long as their job duties meet the exempt requirements for an outside sales position under the FLSA they can be exempt regardless of their salary. 12 Cascade Employers Association sociatio

13 FAQs Do the new salary rules apply to teachers? No. There are certain positions in the Professional exemption that are not subject to the salary requirements. Other positions falling outside of the salary rules include doctors and lawyers. For teachers to fall outside of the salary requirements they must be employed at an educational establishment and have a primary duty of teaching. Can I have a salaried non-exempt employee? Yes. However, because they are non-exempt they must still be compensated for any overtime that is worked. They are also subject to other wage and hour regulations such as rest and meal periods. One of my exempt employees is currently well below the new salary threshold. They never work over 40 hours per week so I can t justify an increase in their salary. Can I keep them at their current salary and just switch them to non-exempt? Yes, that is one option. Keep in mind, they will need to start tracking and reporting all of their hours worked and will be subject to other wage and hour rules such as rest and meal periods, tracking travel and training time, etc. Our company often pays a fairly large holiday bonus. Can that be applied toward the 10% of the employee s salary? Probably not. Holiday bonuses are typically considered discretionary bonuses because they generally are not guaranteed and subject to discretion as to whether they are paid out. Under the new FLSA rules, discretionary bonuses cannot be applied toward the 10% requirement. Does an Office Manager qualify as exempt? Maybe. If the employee s salary is at least $913 per week and their job duties meet one of the white collar exemptions then the position would qualify as exempt. Remember, job titles do not determine exempt status. 13 Cascade Employers Association 13

14 Quick Compliance Checklist Review compensation for exempt positions Analyze options for positions falling below the new threshold and for compression issues Develop and deliver employee communication regarding changes Update job descriptions Update employee handbook policies Conduct employee training for employees moving from exempt to non-exempt Conduct supervisor training for those supervising newly non-exempt employees 14 Cascade Employers Association

15 Additional Resources Steps Toward FLSA Compliance Step 1: Evaluate Step 2: Analyze Step 1: Take Action A. Current Positions and Job Duties Perform Duties Test; Confirm Job Duties Meet Exempt Requirements Classify/Reclassify Employees Track Employee Hours for Positions That May Need To Be Reclassified Reorganize Work Schedules Calculate Cost to Bring to Exempt Reorganize Staffing Calculate Projected Overtime Pay Update Job Descriptions As Needed Do Nothing B. Positions Just Beyond/Below Threshold What Jobs Will Be Impacted? Address Compression Issues Accordingly Increase Wages to Meet or Exceed Threshold If Below Threshold, Maintain Salary and Pay Overtime C. Pay Levels and Pay Structure Jobs Affected By Exemption Increase Develop Formal Compensation Structure Calculate the Increase In Minimum Wage and Projected Increase Address Compression Issues Accordingly Calculate Pay Difference Between Jobs Cascade Employers Association 15

16 Additional Resources Sample FLSA Initial Communication Letter [Date] [Name] [Street Address] [City, State ZIP] Dear [Employee Name], The U.S. Department of Labor (DOL) recently updated the Fair Labor Standards Act of 1938 (FLSA) regulations. Specifically, the salary thresholds to determine whether certain employees are exempt or nonexempt from receiving overtime pay were updated. The [organization and management team] as well as validation from an outside consultant are reviewing the regulations and auditing various positions as necessary. The organization has until Dec. 1, 2016, to comply with the new regulations. Sample If your position is to be reclassified under the new rules, you will receive additional information. If you have any questions regarding the new regulations, please contact your HR representative. We are here to answer any questions you may have and provide you with as much information as possible. Sincerely, [Manager/Supervisor/Representative Name] 16 Cascade Employers Association

17 Additional Resources Sample FLSA Follow-Up Communication Letter [Date] [Name] [Street Address] [City, State ZIP] Dear [Employee Name], The U.S. Department of Labor (DOL) recently updated the Fair Labor Standards Act of 1938 (FLSA) regulations. Specifically, the salary thresholds to determine whether certain employees are exempt or nonexempt from receiving overtime pay were updated. The [organization and management team] as well as validation from an outside consultant are reviewing the regulations and auditing various positions as necessary. At this time, we anticipate that these changes will take effect Dec. 1, However, we have received notice of pending lawsuits and action items attempting to overturn or delay these changes. We are moving forward with our review and audit of various positions so we are prepared if and/or when these changes are finalized. We will continue to monitor the situation and keep you informed of any final decisions that are made. Sample If your position is to be reclassified under the new rules, you will receive additional information. If you have any questions regarding the new regulations, please contact your HR representative. We are here to answer any questions you may have and provide you with as much information as possible. Sincerely, [Manager/Supervisor/Representative Name] Cascade Employers Association 17

18 Additional Resources Sample FLSA Employee Reclassification Letter [Date] [Name] [Street Address] [City, State ZIP] Dear [Employee Name], This letter is to inform you that you have been reclassified as non-exempt. The U.S. Department of Labor (DOL) recently updated the Fair Labor Standards Act of 1938 (FLSA) regulations. Specifically, the salary thresholds to determine whether certain employees are exempt or non-exempt from receiving overtime pay were updated. As a result of our audit against the new regulations, we have determined that your position no longer meets the criteria for exemption from overtime pay. Your position will be reclassified to non-exempt. This change will take effect on Dec. 1, Sample Currently, as an exempt employee, you are not eligible to receive overtime compensation as indicated by company policy. With this status change, you will be subject to all of the applicable protections that the FLSA provides, including but not limited to: being paid for all hours worked and overtime compensation (at the rate of 1 ½ times your regular rate of pay for all hours worked over 40 in the designated workweek). Per company policy [specific to company]: You will be required to record all hours worked in your timesheet on a bi-weekly basis. You will be required to get prior approval from your supervisor before any overtime hours are worked. You will no longer be eligible for exempt employee benefits. [Any other company policy requirements that are new to the employee.] While your status under the FLSA is changing, it is important to note that your contributions to [Organization] are highly valued. This status change in no way implies that your performance is in question. Instead, we are committed to ensuring that our employees are correctly classified and receive the protection guaranteed under the FLSA. [Optional Language: Critical steps have been taken to ensure your pay levels stay consistent to what they were when you were an exempt employee. Since you are now eligible for overtime, you could potentially earn more if you work over 40 hours. However, any hours worked over 40 hours must be approved ahead of time.] [Optional (recommended) Language: Please review the attached company policies that you will need to be aware of regarding your new classification.] If you have any questions about the regulations, this status change or your rights as a nonexempt employee, please contact your HR representative. We are here to answer any questions, provide you with as much information as possible and address any concerns you may have. Sincerely, [Manager/Supervisor/Representative Name] 18 Cascade Employers Association

19 Cascade Employers Association Unsurpassed resources for great employers You Are Not Alone. Cascade Employers Association is a membership-based resource for Northwest employers committed to developing a strong, vital workforce. We work with organizations who know a prosperous business is built on their people. If you re a good employer seeking resources to become a great employer, talk to us. cascadeemployers.com DISCLAIMER: This document may contain general guidance on human resource best practices and employment compliance. It does not constitute legal advice. Prior to implementation, this information should be considered along with your organization s specific practices and legal obligations. No part of this document may be reproduced or transmitted in any form or by any means without the express authorization of Cascade Employers Association.

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