LONE STAR SUMMIT 2016: TO EXEMPT OR NOT TO EXEMPT

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1 LONE STAR SUMMIT 2016: TO EXEMPT OR NOT TO EXEMPT ROUGEUX & ASSOCIATES PLLC NATALIE C. ROUGEUX, J.D., SPHR, SHRM-SCP Labor & Employment Law

2 Disclaimer This presentation and written materials are provided for general information and educational purposes only. Thus, the information provided in these slides and corresponding written materials does not constitute legal advice and does not establish an attorney-client relationship between you and Rougeux & Associates PLLC or its attorneys. Further, the information provided with this presentation is subject to change and may not be current, complete, or applicable to your particular circumstances. Accordingly, Rougeux & Associates PLLC undertakes no responsibility for any reliance on, or use of, the information provided with this presentation. Finally, as legal advice must be tailored to specific facts and circumstances, this information cannot and should not substitute the advice of legal counsel.

3 FLSA BACKGROUND

4 What is Exempt/OT Ineligible? EE must be paid on a salary basis (regardless of quality or quantity); Salary must meet min. threshold; and EE must perform specific job duties. Each exemption has primary duties EE must perform.

5 Non-Profit Organizations

6 Enterprise Coverage for Non-Profits Non-profits are not covered enterprises under FLSA unless they engage in ordinary commercial activities that result in sales made or business done of at least $500k. Enterprise coverage applies only to the activities performed for a business purpose; it does not extend to the organization s charitable activities.

7 Individual Coverage Even if the organization is not covered, EEs may be covered individually if engage in interstate commerce. EEs whose work involves/relates to the movement of persons or things across state lines are considered to be engaged in interstate commerce.

8 Examples of Interstate Commerce Making out-of-state phone calls Receiving/sending interstate mail or electronic communications Ordering or receiving goods from an out-of-state supplier Handling credit card transactions or performing the accounting or bookkeeping for such activities

9 A Note on Volunteers

10 Volunteers Paid EEs of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform. A volunteer will not be considered an EE for FLSA purposes if the individual volunteers freely for public service, religious or humanitarian objectives, and without contemplation or receipt of compensation.

11 Defining Volunteers Is the worker motivated by a personal civic, humanitarian, charitable, religious or public-service motive? Are the services performed typically associated with volunteer work? Are the services provided different from those typically performed by paid workers and are the hours of service less than full time? How much control does the nonprofit exert over the volunteer while she or he is performing services? Does the volunteer typically arrange his or her own schedule to provide services when it is convenient for the volunteer?

12 Refresher on Exemptions

13 The Bosses Are Exempt Highly Compensated Employees At least $134,004/year. Customarily and regularly performs at least one exempt duty. Executive Exemption At least $47,476/year. Management of enterprise or department/subdivision. Customary/regular supervision of 2 or more EEs. Able to hire/fire or recommendation given particular weight.

14 Exempt or Non-Exempt? Family Dollar Cases (W.D.N.C and 2013) Store managers worked over 55 hours/week and were the highest paid employees in their stores. Oversaw security, scheduled and directed other EEs, counseled and disciplined EEs, ensured adherence to payroll budget, screened job candidates, and provided hiring recommendations. But, one devoted 70-75% of her time and the other 90% of his time to performing non-exempt work, such as cleaning the store and stocking shelves.

15 Decision Exempt The general rule is 50% or more time performing exempt work, but it clearly depends. The regs recognize concurrent performance of exempt and non-exempt work. Managerial tasks were of primary importance when compared with other duties. They were relatively free from supervision. Hiring and discipline recommendations were given particular weight. They exercised discretion "virtually every day and all day long."

16 Administrative Exemption At least $47,476/year. Primary duty of performing office or non-manual work directly related to management. Must exercise discretion and independent judgment in matters of significance. Does not apply to application of established techniques or standards, clerical work, or repetitive/routine tasks. A "catch all" exemption and one of the most unclear.

17 Exempt or Non-Exempt? Pepperling v. Materials Eval. & Tech. Corp. (S.D. Tex. 2013) Office Manager/Coordinator coordinated the daily activities of all inspection personnel in Houston. Scheduled shop/field work and provided guidance to EEs. Scheduled work for crews. Made sure crews had required equipment/paperwork on a jobby-job basis and knew what time/where to be on a daily basis. Ordered office supplies. Solved client problems and replaced inadequate personnel.

18 Decision - Exempt Based on the information provided by the customer, would decide which inspector(s) to dispatch for that particular assignment. Would occasionally go into the field to meet with customers to discuss "upcoming work, how we were doing." Would at times send a replacement inspector if the original inspector "didn't have the right thing." Had "written up" employees and given the written warning to the general manager. Job description was one of key pieces of evidence.

19 Professional Exemption At least $47,476/year. Learned Professional: Performance of work requiring advanced knowledge in a field of science or learning. Advanced knowledge must be predominantly intellectual, include work requiring consistent exercise of discretion/judgment, and be used to analyze, interpret, etc. Requires specialized degree used in that profession. Creative Professional: Performance of work requiring innovation, originality, or talent in a recognized field of artistic endeavor.

20 NEW RULE NOW WHAT??

21 Salary Level HCE Salary Level Current Final Rule (effective Dec. 1, 2016) $455 weekly $23,660 annually $100,000 annually $913 weekly / $47,476 annually (40 th percentile of full-time salaried workers in the lowest-wage Census region currently the South) $134,004 (90 th percentile of full-time salaried workers nationally) Automatic Adjusting None Every 3 years, 40 th percentile and 90 th percentile days' notice Bonuses and Commissions N/A Up to 10% of salary can come from non-discretionary bonuses, incentive payments, and commissions, IF paid at least quarterly and "catch up" by next payroll if salary not met.

22 Who is Impacted? Private ERs with "white collar" salaried employees (EAPs) Non-profit ERs if engaging in commerce or if EEs are engaging in commerce

23 Executive Administrative Professional Managing enterprise (or customarily recognized dept. or subdivision) Customarily and regularly direct work of at least 2 or more full-time EEs (or equivalent) Authority to hire/fire, or EE's suggestion and recommendation re: hire/fire/promote given particular weight Office or nonmanual work directly related to mgmt or general bus. ops. of ER or ER's customers Exercise discretion and independent judgment re: matters of significance Learned: work requiring advanced knowledge in field of science or learning acquired by prolonged course of specialized intellectual instruction Creative: invention, imagination, originality or talent in field of artistic endeavor

24 Are Employees Close? Pay it! But, think about compression issues and impact on morale. Make sure there's no EPA issues. Be strategic it's going up in 3 yrs.

25 Can't Afford the Increase? Hourly + Overtime Salaried, Non-Exempt Fluctuating Workweek Piece Rate Commission for Retail and Service

26 Hourly + Overtime Easy Method Convert current salary to hourly rate and pay OT = maybe more pay or control OT hours worked Math is easy = Current pay 2,080 hrs/yr Ex: Salary is currently $30,000 New hr rate = $14.42/hr; $21.63/OT hr

27 When Is this Option Best? You have no or limited OT. You do not have adequate administrative support. If business increases substantially, you have the ability to bring in additional labor (instead of incurring the added OT expense). Morale will not be too negatively impacted. But, maybe use time sheet instead of time clock? Maybe still give benefits of a salaried employee?

28 Hourly + Overtime Alternate Method Base hourly rate on avg. hours worked Ex: Salary is currently $30,000 and works ~50 hours/week 50 hrs/week x 52 weeks = 2,600 hrs/yr $30,000 2,600 = $11.54/hr, $17.31/OT hr. ($11.54) (40) + ($17.31)(10) $ $ = $634.70/$33,004/yr

29 When Is this Option Best? You have consistent OT (otherwise, EE will earn less if he/she doesn't work the avg OT). You do not have adequate administrative support. If business increases substantially, you have the ability to bring in additional labor (instead of incurring the added OT expense). But, morale may be negatively impacted because of uncertainty.

30 Salaried Non-Exempt: Option 1 Easy (safe) method with 1.5 times OT Convert guaranteed salary to hourly rate using 2,080 hrs/year or actual hrs/year Pay overtime on hourly rate at 1.5 times Otherwise, treat EE as a salaried EE Same as hourly + OT with fancy title + guaranteed weekly pay

31 When Is this Option Best? You have limited OT and/or can control OT. Due to morale, employee needs to have a "salary." You have strong trust in employees and want to continue treating them like salaried employees. But: Should not deduct if they miss work or due to poor production Must still require that they clock in/out or turn in time sheets

32 Salaried Non-Exempt: Option 2 Only if hours fluctuate + should treat as salaried EE Must have an agreement with the EE regarding the hours for which a salary is paid Pay ½ time for any hours over 40 and within the agreed hours for which the salary is paid Pay 1.5 times for any hours over 40 and over the agreed hours for which the salary is paid Must receive minimum wage for all hours

33 Salaried Non-Exempt: Option 2 EE works between hours per week. Agreement = salary of $450/wk for 45 hours/wk Employee works 47 hours RR = $ = $10/hour (make sure this is at least min. wage) Weekly pay = $450 + ($5) (5 hrs) + ($15.00) (2 hrs) Weekly pay = $450 + $ $30.00 = $505.00

34 When Is this Option Best? The workweek fluctuates, but not severely. EE can better budget pay, and you can get the same hours and productivity. You are willing to always be the "loser" if EE works less than the agreed amount of hours for which the salary is paid (but, think this is best for morale). Good middle ground between hourly options and more conservative salaried non-exempt option.

35 Other Thoughts Try it out now and adjust by Dec. 1. NLRA Employees can discuss their wages! Unemployment Insurance If anything you do results in a loss of pay, employee may be entitled to partial unemployment or have a good reason to quit. Avoid Off-Clock Work It's okay to prohibit OT, but must still pay if they work it.

36 Questions?

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