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DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will begin promptly at 12:00 pm CDT. Please read and follow the below instructions: For you information, this Webinar presentation is being recorded. If you have not already done so, please join the conference call. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your phone. If you are on a conference phone, please move all cellular or wireless devices away from the conference phone to avoid audio interference. If you have questions during the presentation, you may utilize the Q&A pod on the upper-right-hand side of your screen. You may type questions here and it will be sent to the presenter for response. If your question is not answered during the presentation, our presenter will answer questions at the end of the webinar. Visit the “Files” pod in the lower-right-hand corner of the screen if you would like to download a copy of this PowerPoint presentation.

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Page 1: DOL’s New Overtime Rules - IADC...Aug 19, 2015  · DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will

DOL’s New Overtime Rules

Wednesday, August 19, 2015

Presented By the IADC Employment Law Committee

Welcome! The Webinar will begin promptly at 12:00 pm CDT. Please read and follow the

below instructions:

• For you information, this Webinar presentation is being recorded.

• If you have not already done so, please join the conference call.

• Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your

phone.

• If you are on a conference phone, please move all cellular or wireless devices away from the conference

phone to avoid audio interference.

• If you have questions during the presentation, you may utilize the Q&A pod on the upper-right-hand side

of your screen. You may type questions here and it will be sent to the presenter for response. If your

question is not answered during the presentation, our presenter will answer questions at the end of the

webinar.

• Visit the “Files” pod in the lower-right-hand corner of the screen if you would like to download a copy of

this PowerPoint presentation.

Page 2: DOL’s New Overtime Rules - IADC...Aug 19, 2015  · DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will

Type your questions for presenters here in the Q&A Pod

Click on the file name to download this Power Point or any referenced documents

Page 3: DOL’s New Overtime Rules - IADC...Aug 19, 2015  · DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will

IADC Webinars are made possible by a grant from The Foundation of the IADC.

The Foundation of the IADC is dedicated to supporting the advancement of the

civil justice system through educational opportunities like these Webinars. For more

information on The Foundation, visit www.iadcfoundation.org.

Page 4: DOL’s New Overtime Rules - IADC...Aug 19, 2015  · DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will

Presenters

Mark A. Fahleson Rembolt Ludtke

Lincoln, NE

[email protected]

Jeffrey M. Beemer Dickinson Wright, PLLC

Nashville, TN

[email protected]

Page 5: DOL’s New Overtime Rules - IADC...Aug 19, 2015  · DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will

Why are we here???

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Overview

• Background on FLSA

• DOL’s Proposed Rule and Request for Comments

• Potential Impact on Your Clients

• Strategies Moving Forward

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Fair Labor Standards Act of 1938

• Adopted Post-Depression Era• Governs

– Minimum Wage– Overtime– Child Labor – Recordkeeping

• Coverage– Applies to “employees”– Two Types of Employer Coverage

• Enterprise Coverage• Individual Coverage

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FLSA Overtime Requirements

• Covered nonexempt employees must receive 1 ½ times their “regular rate of pay” for all “hours worked” over 40 hours in a “workweek”

• Purpose?

– Apply financial pressure to spread employment

– Reduce overwork and its detrimental effect on worker health and well-being

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Exemptions from Overtime

• Numerous exemptions created and repealed over the years

– Employees employed by a “motion picture theater” are exempt

– Employees employed in a “local retailing capacity” were exempt until repealed in 1961

– Teachers and academic administrative professionals were exempted in 1966.

– Certain computer professionals were exempted in 1990.

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White Collar Exemptions

• Section 13(a)(1) of FLSA

– Included in FLSA as adopted in 1938

– Exempts from overtime and minimum wage requirements any employee employed as a:• Bona Fide Executive

• Bona Fide Administrative

• Bona Fide Professional

• Outside Salesman

– Congress left it up to DOL to define what those terms mean

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Overtime Exemptions

White Collar Exemptions

=Part 541 Exemptions

=EAP Exemptions

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White Collar Exemptions

• Since 1940, the regulations have required each of 3 tests to be met for the white collar exemption to apply:

– Predetermined fixed salary not subject to reduction;

– Amount of salary must meet a specified minimum; and

– Employee’s job duties must meet the “duties test” for the exemption.

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White Collar Exemptions 1949-2004

• 2 Different Duties Tests– Long Test

• Lower minimum specified salary requirement

• Detailed requirements for duties

• Included a limit on the amount of nonexempt work that could be performed – 20 percent for most workers

– Short Test• Higher minimum specified salary requirement

• Less onerous requirements for specified duties

• No cap on nonexempt work

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August 2004 Regulatory Changes

• Eliminated the “long” and “short” dichotomy

• Implemented “standard duties”

– “Primary duty”

• “The principal, main, major or most important duty that the employee performs.” 29 C.F.R. §541.400(a)

• “Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion.” 29 C.F.R. §541.400(b)

• Established minimum salary of $455/week

– $23,660/year

• Created Highly Compensated Employee exemption

• Provided examples of exempt/nonexempt positions

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Executive Exemption (since 2004)

• Paid on a salary basis

• Minimum salary of $455/week-$23,660/year– Pelosi Exception for Samoa

• Primary duty:– Management of enterprise or customarily recognized

department/subdivision;

– Customarily and regularly directs 2 or more FTEs; and

– Authority to hire/fire or whose suggestions/recommendations are given “particular weight”

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Administrative Exemption (since 2004)

• Paid on a salary basis

• Minimum salary of $455/week-$23,660/year– Pelosi Exception for Samoa

• Primary duty:– Office or nonmanual work directly related to the

management or general business operations of the employer; and

– Exercises discretion and independent judgment with respect to “matters of significance”

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Professional Exemption (since 2004)

• Paid on a salary basis

• Minimum salary of $455/week-$23,660/year– Pelosi Exception for Samoa

– Teachers

– Law/Medicine

– Computer Professionals

• $27.63/hour (6 ½ times minimum wage in 2004)

• Primary duty:– Learned professional;

– Creative professional;

– Teaching professional;

– Law/Medicine; or

– Computer professional.

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Outside Sales Exemption (since 2004)

• No salary requirement

• Primary duty:

– Making sales; or

– Obtaining orders/contracts for services or use of facilities; and

– Customarily and regularly engaged away from employer’s place of business.

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Highly Compensated Employee Exemption

• 2004 Regulations created new highly compensated employee exemption (HCE)

• Requirements:

– Salary

• Earn at least $100,000 in total compensation

– May include commissions and nondiscretionary bonuses

– Excludes board, lodging and other fringe benefits

– Duties

• Regularly perform any one or more of the exempt duties of an Executive, Administrative or Professional Employee

Page 20: DOL’s New Overtime Rules - IADC...Aug 19, 2015  · DOL’s New Overtime Rules Wednesday, August 19, 2015 Presented By the IADC Employment Law Committee Welcome! The Webinar will

DOL’s Proposed Rule

• March 13, 2014– President Obama signed Presidential

Memorandum directing DOL to update FLSA overtime and minimum wage regulations

• July 6, 2015– DOL issued Notice of Proposed Rulemaking

• Comment Period– Comments must be filed on or before September

4, 2015

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Key Provisions of Proposed Rule

• Increases minimum salary requirement– 40th percentile of earnings for full-time salaried workers

• 2013: $921/week, $47,892/year

• 2016 (est): $970/week, $50,440/year– Compare: Currently $455/week, $23,660/year

• Increases HCE salary requirement– 90th percentile of earnings for full-time salaried workers

• 2013: $122,148/year– Compare: Currently $100,000/year

• Indexes salary requirements on annual basis – Fixed percentage of wages or CPI-U

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DOL Proposal

• New terminology

– Exempt

• Now “Not Overtime Protected” or “Overtime Ineligible”

– Nonexempt

• Now “Overtime Protected” or “Overtime Eligible”

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The Other Shoe . . .

• DOL is seeking comment on whether to amend the “duties tests”

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The Other Shoe . . .

• Tightening the Duties Test

– DOL loves the California standard!

• Overtime ineligible employee must spend at least 50 percent of their time performing their primary duty.

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The Other Shoe . . .

• DOL is seeking comment on the treatment of nondiscretionary bonuses

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The Other Shoe . . .

• Smart phone use is next!

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Impact on Your Clients!

• DOL estimates

– 4.6 million currently exempt workers would become entitled to overtime protection in the first year

– 6.3 million white collar currently exempt workers would have their “overtime protection strengthened”

– Direct employer costs: between $239.6 - $255.3 million/year

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Impact on Your Clients!

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Suggested Strategies

• Likely effective date: January 2016• Consider submitting comments to DOL• Review every job/position

– Salary basis?– Minimum salary?– Duties?– Budget impact?

• Review job descriptions• Assuming proposed minimum salary stays, will they

remain exempt?• What do we do going forward?

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Going forward

• Several options:– Increase salary to meet new minimum, but require

more in terms of hours and productivity• Review duties, too!

– Convert to hourly basis and pay anticipated OT equivalent to former salary

– Treat as “overtime eligible” and continue to pay on a salary basis• Employee would still receive OT for all hours over 40 in a

workweek• Actively manage amount of OT that overtime-eligible

employees work

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Fluctuating Workweek Method• Use the FWW method to pay reduced overtime

premiums

• Overtime eligible employees can still be paid on a salary basis that is below the minimum.

• Four requirements:– Employee is paid a fixed salary (excluding OT

premium);

– Salary must be at or above minimum wage;

– “Clear mutual understanding” that salary covers all hours worked; and

– Employee’s hours fluctuate from week to week.

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Fluctuating Workweek

Method

• Jane is paid weekly salary of $500/week.

• Week 1: Jane works 40 hours

• Week 2: Jane works 50 hours

• Week 3: Jane works 60 hours

• Jane’s pay?– Week 1: $500 (no OT)

– Week 2: $550 (10 hours OT; OT premium is $5/hour)

– Week 3: $583.33 (20 hours OT; OT premium is $4.16/hour)• WARNING! May violate state minimum wage

law

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Questions for Presenters?

Mark A. Fahleson Rembolt Ludtke

Lincoln, NE

[email protected]

Jeffrey M. Beemer Dickinson Wright, PLLC

Nashville, TN

[email protected]

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DOL’s New Overtime Rules

Wednesday, August 19, 2015

Thank you for Participating!

To access the PowerPoint presentation from this or any other IADC

Webinar, visit our website under the Members Only Tab (you must be

signed in) and click on “Resources” “Past Webinar Materials,” or

contact Melisa Maisel at [email protected].