New overtime laws mean big changes

Published 3:00 am Sunday, August 21, 2016

Photo by Donna Campbell/Charles Morris, a manager at Hero’s Haven in Brookhaven, expects to see some changes to his hours or salary when the Department of Labor’s new overtime law goes into effect in December.

Photo by Donna Campbell/Charles Morris, a manager at Hero’s Haven in Brookhaven, expects to see some changes to his hours or salary when the Department of Labor’s new overtime law goes into effect in December.

A new federal overtime regulation will result in large-scale changes for employers and workers in December.

New regulations championed by President Barack Obama and put forth by the Department of Labor will raise the threshold for salaried white-collar workers, who now will be entitled to overtime pay or a significantly higher salaried pay. Notably, the minimum threshold for qualified workers will increase nearly 100 percent, from $455 a week ($23,660 a year) to $913 a week ($47,476 a year).

Chamber officials throughout the state are working to educate their members. “Ignorance is never an excuse for (disobeying) the law,” Kimberly Nastasi, CEO of the Mississippi Gulf Coast Chamber of Commerce told business owners at a recent chamber event. “This new regulation changes how we hire; it’ll change the way we do business. We have to be compliant. But not knowing about it isn’t an excuse.”

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The Brookhaven—Lincoln County Chamber of Commerce expects to get more requests from businesses as the deadline for the change approaches.

“We’re planning an education program for chamber members toward the end of the year before the law goes into effect,” said Chamber Program Director Katie Nations. “If any business owners have questions about the new law, they can call us anytime.”

The Fair Labor Standards Act already stipulates hourly employees be paid for all hours and overtime pay at their regular rate of pay plus one-half the regular rate of pay for all hours in excess of 40 hours worked per work week. For salaried workers, who are currently exempt from the overtime requirements, the new federal threshold sets a national standard that guarantees a base level of salary regardless of whether states pass or repeal overtime legislation of their own. What’s new is who now will be considered eligible, or non-exempt, for overtime pay. Any qualified salaried worker who earns less than $47,476 a year will be entitled to overtime pay.

The Department of Labor and Economic Policy Institute disagree on how many workers will be affected by the new regulation, but agree it’s in the millions. The DOL predicts the regulations will affect up to 4.5 million U.S. workers. Close to 2 million workers who do not have college degrees could now be considered eligible.

Steven Cupp, a labor and employment attorney, said the exemptions will largely include workers considered to be part of “middle management.”

“Let’s say you work as an assistant manager at a nearby restaurant. You make $30,000 a year in salary. Before the new regulation, it’s possible you worked 50, 60 hours a week. Now with the new rule, employers will have to determine a couple things,” he said. “First of all, they’ll have to consider raising your salary to the new federal threshold of $47, 476 a year.”

Employer options

Employer options include raising qualified employees’ salary to $913 a week. Or they can transfer salaried employees to an hourly rate and pay the employee time-and-a-half for any hours over the 40-hour work week. Or they can keep an employee on salary but monitor their hours to make sure they don’t work overtime.

And that’s not all, Cupp said.

“Employers can reduce the work week and make sure employees don’t work over 40 hours. They’ll have the option to renegotiate salaries, maybe bring them down a little bit. One other option to get around paying time-and-a-half is for employers to hire additional part-time employees to make up for expected overtime hours,” he said.

Employees should tread cautiously, Susan Denham with the Department of Labor said.

“The new regulation will affect a great number of employees and employers who will have to make some tough decisions on how to deal with this,” she said.

“One misconception is that a lot of people think is they’ll be getting a huge raise Dec. 1. Well, not necessarily.”

Requirements for exemption

Job titles alone do not determine exempt status. For an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Labor Department’s regulations. There are some gray areas when classifying employees, but the following definitions provide some guidance.

Requirements for an executive exemption:

• The employee’s primary duty is managing the enterprise, or managing a department or subdivision of the enterprise.

•  The employee must “customarily and regularly” direct the work of at least two or more other full-time employees or their equivalent. (The employee can oversee two full-time employees or four part-time employees whose work comprises two full-time workers.)

• The employee must have the authority to hire or fire other workers, 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 weight.

Requirements for an administrative exemption:

• 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.

• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Employees fall within the professional exemption category if:

• The employee’s primary duty is the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment.

• The advanced knowledge must be in a field of science or learning.

• The knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

This group will include employees who have college degrees, and whose job description entails the use of the instruction learned in that degree.

According to the Labor Department’s Wage and Hour Division, the top and most costly mistake for employers is wrongly labeling employees as exempt from overtime pay.

Employees misclassified as exempt can be eligible for back wages and an equal amount in liquidated damages. Another benefit of the new regulation is record keeping for employers and employees.