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HKQ Firm News

PREPARE FOR NEW OVERTIME LAW

2016 Federal Overtime Rule / Law UPDATE: November 28, 2016 - Attorney Lars Anderson - A federal judge in Texas has halted the Department of Labor’s new Federal Overtime Rule scheduled to go into effect on December 1. The overtime regulation would have raised the minimum salary for the Executive Professional and Administrative exemption from $23,600 to $47,476.

Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas issued a temporary nationwide injunction on Nov. 22. The injunction was issued in response to an emergency motion filed by twenty-one states, which was consolidated with another case filed by the United States Chamber of Commerce and other business groups. Judge Mazzant stated in his decision that a temporary injunction “preserves the status quo while the court determines the department’s authority to make the final rule as well as the final rule’s validity.”

Due to the nationwide temporary injunction, the new overtime regulation will not take effect on Dec. 1. Employers may continue to follow the existing overtime regulations until a final decision is reached in the case, however, employers should be prepared to make the necessary changes in case the temporary injunction is dissolved.

If you have any questions or would like additional information, please contact Lars Anderson at landerson@hkqlaw.com or 570-287-3000 ext. 1110.

2016 New OT Law

November 21, 2016 - HKQ Law Attorney Lars Anderson -

On December 1, 2016, a new regulation of the Fair Labor Standards Act (FLSA) goes into effect. The Department of Labor estimates the new regulation will directly affect 4.2 million workers.

The new FLSA regulation increases the salary level threshold for some overtime exempt employees. As everyone is aware, the FLSA requires that overtime eligible employees receive 1 1?2 times their regular rate of pay for all hours worked in excess of 40 in a given work week. However, under the FLSA there are some employees who are exempt from the overtime regulations. In order to be classified as an overtime exempt employee the employee must meet the requirements of the specific exemption.

Some common exemptions listed in the FLSA regulations are:

  • Commissioned sales employees
  • Computer professionals
  • Farmworkers
  • Seasonal and recreational establishments
  • Executive, Administrative, Professional and outside sales employees

The FLSA overtime regulation which takes effect on December 1, 2016, increases the compensation thresholds for Executive, Administrative and Professional (otherwise known as “EAP”) exempt employees and highly compensated employees. Under the current FLSA regulations and the new regulation that takes effect on December 1, 2016 in order for an employee to qualify as an EAP exempt employee, there is a two prong test. The first prong is that the employee must meet the salary level threshold requirements. The second prong is a duties test, i.e. the duties actually performed by the employee must coincide with the exemption classification.

The definition of Executive, Administrative and Professional employees, as well as highly compensated employees, has not been changed by the

Further, the new regulation provides for an automatic increase in compensation every 3 years starting on January 1, 2020. Changes to the salary level threshold will be published 150 days before the effective date. The next change to the salary level threshold will be posted by August 1, 2019. ew regulation. Additionally, the duties test is not changed by the new regulation. The primary change of the new regulation is that the minimum salary level to qualify as an EAP exempt employee increases from $455 per week or $23,660 annually to $913 per week or $47,476 annually. For highly compensated employees, the minimum annual compensation rises to $134,004, with at least $913 per week on a salary or fee basis.

HKQ Law Attorney, Lars Andersen

To qualify for the Executive Exemption:

  • The employee must be compensated on a salary basis at not less than $913 per week; and
  • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; and
  • The employee must customarily and regularly direct the work of at least two or more other full time employees or their equivalent; and
  • The employee must have the authority to hire of fire others

To qualify for the Administrative Exemption:

  • The employee must be compensated on a salary basis at not less than $913 per week; and
  • The employee’s primary duty must be the 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
  • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
  • Business operations includes but is not limited to working in the following areas: tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities

There are two classifications under the Professional Exemption, Learned Professional and Creative Professional.

To qualify for the Learned Professional Exemption:

  • The employee must be compensated on a salary basis at not less than $913 per week; and
  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominately intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; and
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

To qualify for the Creative Professional Exemption:

  • The employee must be compensated on a salary basis at not less than $913 per week; and
  • The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

To qualify for the Highly Compensated Employee Exemption:

  • The employee must perform office or non-manual work and be paid a total annual compensation of $134,004, with at least $913 per week on a salary or fee basis, and customarily and regularly perform at least one of the duties of an exempt Executive, Administrative or Professional employee.
  • Non-management production line workers and employees who perform work involving repetitive operations with their hands, physical skill, and energy are not exempt under this section no matter how highly paid.

Employers must be prepared for the upcoming overtime regulation change. Starting December 1, 2016, which is a Thursday, employees who may have been qualified as an overtime exempt employee in the past may no longer be exempt. Here are a few tips for employers to prepare for the change:

  • Analyze each employee’s job duties and responsibilities as compared to their job description to make sure that employees are properly classified as overtime eligible or overtime exempt.
  • Analyze each employee’s compensation and determine if changes need to be made in order to keep the employee in the overtime exempt classification.
  • Have a plan in place to roll out any changes to employee compensation or overtime classifications.
  • If employees that were previously classified as overtime exempt are now overtime eligible have a discussion with the employee to ensure the employee understands the change to their classification and what it means with regard to their hours of work and/or compensation.
  • Implement a time tracking system so that the hours worked for salaried employees who do not qualify as overtime exempt are tracked and that overtime compensation is paid when appropriate.
    • A time tracking system can be as simple as an agreement between the employee and employer stating the employees hours of work are from X time to X and that the employee will notify the employer of any changes/deviations from the standard schedule.

Finally, if you have any questions regarding the impact of the new overtime regulation, how the regulation affects your company, or whether or not a particular employee meets the requirements of an overtime exemption, consult an attorney for legal advice. An employment law attorney can help you navigate through the new regulations.

Have questions about the new overtime provisions or other employment issues? Call HKQ Law at (800) 760-1529.

Hourigan, Kluger & Quinn, PC is led by Attorney Joseph Quinn, one of the Top 100 trial lawyers in the nation. Seventeen lawyers strong, HKQ Law represents Personal Injury, Business Law and Personal Law clients in Lackawanna, Luzerne and surrounding northeastern PA counties for more than half a century. HKQ Law has won some of the largest verdicts and settlements in the region's history, totaling over a half billion dollars on behalf of injured clients, and was recently recognized for one of the top 20 Verdicts in Pennsylvania, 2015.

The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Reports, and have received the AV Preeminent Rating by Martindale-Hubbel. Additional information can be found at www.HKQLaw.com or by calling (800) 760-1529.

				

 

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