Time to Talk Overtime. New Fair Labor Standards Act Rules and Some Existing Rules to Live By

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1 Time to Talk Overtime New Fair Labor Standards Act Rules and Some Existing Rules to Live By

2 Presenters Meghan Hill Principal, Columbus Lindsay Gingo Of Counsel, Cleveland Shennan Harris Associate, Columbus

3 Introduction President Obama issued directive to the Secretary of Labor in 2014 to modernize and streamline the existing white collar exemptions. Regulations had not been updated since 2004 Final Rule announced on Wednesday, May 18 Final Rule published on Monday, May 23 3

4 4

5 Classifying Employees Exempt: Not subject to the provisions of the Fair Labor Standards Act regarding minimum wage, overtime, record-keeping, etc. Non-exempt: Subject to all FLSA rules. 5

6 The Regular Rate An employee s regular rate is an hourly rate. The regular rate must be at least minimum wage. Federal: $7.25/hour Ohio: $8.10/hour (for employers grossing $297,000+ annually); $7.25/hour for all other employers. 6

7 Unauthorized or Off-the-Clock Work Employees must be paid for any time the employer suffers or permits them to work. Employers can discipline employees for working without permission Employers must pay employees for all hours they are instructed to work. 7

8 Unpaid Time Non-exempt employees must be paid at least time and a half for any hours worked in excess of 40 in a week. Night shifts, weekend work and holiday work do not automatically qualify for extra pay. Time spent doing pre- or post-work tasks may qualify as compensable time, thereby impacting the 40-hour count for employees. 8

9 Old Rule: Recap Salary $455/week, $23,660/year Primary Duties Job duties must primarily involve executive, administrative, or professional duties Highly-compensated employee $100,000 total annual compensation plus one exempt duty 9

10 Old Rule: Recap Executive Employees Salary $455/week, $23,660/year Primary Duties 1. Managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; AND 2. Customarily and regularly direct the work of at least two or more other fulltime employees or their equivalent; AND 3. Have the authority to hire or fire other employees, or the employee s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight 10

11 Old Rule: Recap Administrative Employees Salary $455/week, $23,660/year Primary Duties 1. Performance of office or non-manual work directly related to the management or general business operations of the employer or the employer s customers; AND 2. Exercise of discretion and independent judgment with respect to matters of significance. 11

12 Old Rule: Recap Professional Employees Salary $455/week, $23,660/year Primary Duties 1. Performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; AND 2. In a field of science or learning; AND 3. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction 12

13 Old Rule: Recap Computer Employees Salary $455/week, $23,660/year or, if compensated on an hourly basis, at a rate not less than $27.63 an hour; Primary Duties 1. The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the specified high-level duties. 13

14 New Rule 4.2 million currently exempt workers becoming entitled to minimum wage and overtime protection 14

15 15

16 New Rule 1. Increases current minimum salary level for executive, administrative, professional and computer employee exemptions From $455 per week ($23,660 per year) to $913 per week ($47,476 per year) Automatic increases every 3 years to threshold wage level based on 40 th percentile of weekly earnings for full-time salaried workers in lowest-wage Census region (beginning January 1, 2020) 16

17 An Example A District currently employs a Food Service Director whose primary duty is to independently manage and direct the food service program, and who earns an annual salary of $45,000. That employee is not currently entitled to overtime pay. Why? She works in a high-level position and is paid a salary, but she earns more than the current minimum salary of $23,660 per year. However, effective December 1, 2016, the Director will be entitled to overtime pay. Why? 17

18 New Rule 2. Increases threshold for exemption as a highly compensated employee From $100,000 to $134,004 (yearly salary) Automatic increases every 3 years to the threshold wage level based on the 90 th percentile of weekly earnings for full-time salaried workers (beginning on January 1, 2020) 18

19 New Rule 3. Permits up to 10% of the standard salary level from non-discretionary bonuses, incentive payments and commissions paid at least quarterly 19

20 Old Rule versus New Rule Old New Salary Level $455/week $913/week Bonuses Did not count toward salary level Up to 10% of salary level can come from non-discretionary bonuses that are paid at least quarterly Highly-compensated Employee Annual Compensation Level $100,000 $134,004 Automatic adjustment to salary/hce compensation level N/A Every 3 years Duties Tests See Fact Sheet #17A No changes! 20

21 Effective Date December Don t procrastinate! The dramatic increase in the salary threshold will require most employers to make some significant changes to ensure compliance

22 Affected Positions A B Currently classified as exempt AND Make between $23,660 and $47,476 Currently classified as exempt highly-compensated employee (do not meet other exemptions) AND Make less than $134,004 22

23 Compliance Options GROUP A OPTION 1: Keep Exempt from Overtime Pay Raise salary OPTION 2: Keep Exempt from Overtime Pay If salary at salary $42, or more, keep salary Add quarterly non-discretionary bonus (if 10% or less of threshold) 23

24 Compliance Options GROUP A OPTION 3: Reclassify as Non-exempt Pay overtime for any hours worked over 40 Time-tracking required! Decreases flexibility (work from home/remotely) Consider comp time 24

25 Next Steps Perform classification audit Make decisions Prepare for impact 25

26 Next Steps - Audit Perform classification audit Check/correct any currently suspect classifications Examine exempt Ensure compliance going forward 26

27 Common Pitfalls Several types of mistakes are typically made by Districts which lead to employees being improperly classified as exempt from overtime: 1. Treating all salaried employees as exempt. 2. Determining the exemption based upon the employee s job title. 3. Relying on job descriptions or performance evaluations. 27

28 Next Steps - Decisions Make decisions Bump up salary? Add non-discretionary bonus or commissions? Modify position duties, hours? Reclassify? 28

29 Next Steps - Impact Prepare for impact Financial More money to employees now and every three years Increased compliance costs now and every three years Operational / Education Time-tracking Work-from-home, mobile device policies may need another look Employee morale Many employees do not like the idea of having to track their time Sensitivity in roll-out 29

30 A Refresher: Calculating Overtime Employers must pay nonexempt employees at least minimum wage for all hours worked. Employers must also pay nonexempt employees for overtime at a rate of one and one-half times the employee s regular wage rate for hours worked in excess of 40 hours in one workweek. Hours for holidays, sick days, vacation days, calamity days or any similar type of hours for which employees are paid but do not work need not be counted toward the 40-hour workweek unless a collective bargaining agreement provides otherwise. 30

31 Common Mistakes Failing to pay employees who work two District jobs overtime. Failing to pay overtime to employees who work at special events, such as a cafeteria employee who also works banquets. Failing to correctly compute an employee s overtime rate, such as failing to include shift differentials and bonuses into the overtime rate. Allowing employees to volunteer. 31

32 Overtime for Non-Exempt, Salaried Workers The regular rate for salaried employees entitled to overtime may be determined by calculating the weekly salary and dividing by the number of hours which the salary is intended to compensate. OPTION 1, example for a fixed, 40-hour work week: Employee receives a $400 salary per week based upon a 40 hour workweek. If the employee works 45 hours, she is owed a total of $475. The employee s regular rate is $10.00 per hour ($ ) When overtime is worked, the employee is entitled to receive one and one-half times this $10 regular rate ($15) for all hours over 40. (40 hours x $10) + (5 hours x 1.5 x $10) = $

33 Overtime for Non-Exempt, Salaried Workers OPTION 2, example for a salary for all hours worked (assume 50 hours worked this week, $500 weekly salary): Calculate the regular hourly rate for the week. Divide the weekly salary by the total number of weekly hours worked. $500 / 50 hours = $10 per hour Calculate the overtime hourly rate. Already accounted for the overtime hours once in the regular hourly rate. Multiply the regular hourly rate by 0.5 (instead of 1.5) to get the overtime hourly rate. $10 x 0.5 = $5 more per overtime hour Calculate the overtime wages. Multiply the overtime hourly rate by the number of overtime hours the employee worked. $5 x 10 overtime hours = $50 total overtime wages Calculate the total wages. Add together the total regular wages and total overtime wages. $500 + $50 = $550 total wages for the week 33

34 Calculating Overtime Two Jobs, One District Two permissible methods of determining the regular rate for employees who work at two or more different rates of pay during a single workweek. 1. Weighted average Example: If an employee performs 40 hours of work at $12.00 per hour and 8 hours of work at $10.00 per hour, his regular rate would be determined as follows: Straight time = (40 hours x $12/hr) + (8 hours x compensation $10/hr) =$ $80.00 = $ Total hours = 48 hours Regular rate = $560.00/48 hours = $11.67/hour Overtime premium = $11.67/hour x ½ x 8 hours = $46.66 Total compensation = $ straight time + $46.66 = $

35 Calculating Overtime Two Jobs, One District 2. Work performed during overtime hours The second method is to compute overtime on the basis of the regular rate for the work being performed during the overtime hours. This method is permissible only by prior agreement such as in a collective bargaining agreement and only if the employee is performing two or more different types of work. 35

36 Teachers Teachers are not entitled to overtime pay, even under the new Rule. Under the FLSA the salary requirements do not apply to teachers. Teachers include those who are teaching, tutoring, or lecturing, or otherwise imparting knowledge such as regular academic teachers; special education teachers; and teachers in areas such as vocational education, home economics, or music. Generally, a person with a teaching certificate who is engaged in teaching will be exempt from overtime pay. 36

37 A Word on Extracurricular Contracts Teachers who also spend a considerable amount of time in extracurricular activities such as coaching or advising extracurricular activities are also considered to be exempt from overtime pay. This has particular implications for supplemental contracts, where a fulltime teacher holding a supplemental contract for example, for coaching basketball would not be entitled to overtime pay for the supplement contract al work. 37

38 A Word on Extracurricular Contracts But what about most non-teaching staff (e.g., a custodian)? Those employees who are non-exempt are entitled to at least minimum wage and overtime pay for hours worked over 40, even if the extracurricular contract is for a fixed sum! Now what? Don t allow non-exempt personnel to hold these contracts. Pay minimum wage for the work, and if the employee doesn t earn the total supplemental amount through hours worked, at the end of the contract you can pay to him/her the difference owed. Estimate the hours to work, multiple by 1.5, and divide by the contract amount for an hourly rate that won t exceed the supplemental if OT is paid. Make up the difference at the end. Set clear expectations for the hours to be worked, and require approval beyond. 38

39 Compensatory Time Common mistake: Having an informal comp time system with no records maintained. The FLSA authorizes Districts to provide compensatory time off in lieu of monetary overtime, at a rate of 1 1/2 hours of comp time for each hour worked over 40 hours. Districts may also avoid overtime by giving employees time off in the same workweek so the employee does not work over 40 hours. This is not considered comp time rather, it is flexible time and is not subject to the restrictions on comp time. 39

40 Compensatory Time Employees must agree to receive comp time in lieu of overtime pay, with that agreement in a CBA, employment agreement, or some other memorandum of understanding. Up to 240 hours of compensatory time, with requests to use generally honored. 40

41 Compensatory Time Absent agreement to the contrary, Districts may cash out an employee s comp time at the regular rate earned by the employee at the time of payment. Districts may require use of comp time. Terminated employees must be paid at the regular rate, or the average regular rate during the last three years, whichever is higher. Keep records! 41

42 Travel Time Most travel time is excluded from hours worked unless it is part of an employee s principal activity. 1. Ordinary home to work travel is not considered compensable time. 2. Travel time commuting from home to work in an employer s vehicle is not compensable time as long as the employer and the employee agree concerning the use of the vehicle and the use is within the normal commuting area. 3. Travel that is part of the employee s regular work activities, such as traveling from job site to job site is considered hours worked. 4. Travel time away from home is compensable in certain circumstances. 42

43 Travel Time Travel away from home overnight qualifies as hours worked when it occurs during the employee s regular working hours or during the corresponding hours on non-working days. An employee who performs work while traveling, either by driving, assisting the driver, or working while a passenger, must be compensated for this time. However, time spent as a passenger is not compensable unless the employee is actually working. 43

44 We Can Help FLSA Exemptions Review Contact us Need list of exempt employees with titles, base salary and bonus information We will flag positions that need to be closely examined and help with creative compensation solutions for employees requiring reclassification 44

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