This article was authored by Brian P. Walter and Lars T. Reed.
Today, September 24, 2019, the U.S. Department of Labor (“DOL”) announced a final rule modifying the weekly salary and annual compensation threshold levels for white collar exemptions to FLSA overtime requirements. The final rule will become effective on January 1, 2020. It is critical for public education employers to become familiar with the new regulations, among other reasons because misclassification of employees as being exempt from FLSA overtime requirements is a costly mistake. In addition to the new DOL regulations, public educational institutions in California must also continue to comply with the exemption requirements set forth in the Education Code.
Overview of the FLSA Salary Basis Test and Highly Compensated Employee Rules
Certain employees can be exempt from the FLSA’s overtime requirements. The most common overtime exemptions under the FLSA are the so-called “white collar” overtime exemptions (executive, administrative, professional). To qualify for an executive, administrative, or professional exemption, an employee must receive a minimum salary and be paid on a salary basis (“salary basis test”) and perform the appropriate duties (“duties test”).
The current weekly salary threshold of $455/week (equivalent to $23,660 per year for a full-year employee) has been in effect since 2004. At that time, the FLSA regulations were also amended to add a new “highly compensated employee” overtime exemption for employees that make at least $100,000 annually and who can meet a less-stringent version of the duties test.
The DOL is also officially rescinding regulations it issued in 2016. Those regulations would have raised the salary thresholds even further, to $913/week for the standard threshold and $134,004 annually for “highly compensated” employees, and would have subjected both thresholds to an automatic increase every three years. However, the 2016 regulations were enjoined by a federal District Court in Texas and never went into effect.
Under the FLSA, full-time faculty, part-time faculty, and teaching assistants are exempt from overtime requirements as teachers because the definition of teaching is quite broad and there is no salary basis test for the teacher exemption. (29 C.F.R. sec. 541.303, Teachers)
The FLSA also contains a separate salary test for academic employees (other than teachers) whose primary duties are administrative functions relating to academic instruction or training (as opposed to general business operations of the school). Common examples of those positions at schools are a Dean, a Director of Student Success and Equity, and a Director of Admissions and Records. The FLSA salary requirement is the standard weekly threshold or the minimum entrance salary for full-time teachers at the school, whichever is lower.
What Are The New Key Provisions?
The newly published FLSA regulations that become effective January 1, 2020, make the following changes:
- The weekly salary threshold level is raised from $455 per week ($23,660 per year) to $684 per week ($35,568 per year);
- The total compensation needed to exempt highly compensated employees is increased from $100,000 annually to $107,432 annually;
- Employers are now able to use nondiscretionary bonuses and incentive payments made at least annually to satisfy up to 10 percent of the new standard salary level.
- The rule also revises the special salary thresholds applicable to workers in U.S. territories and the motion picture industry.
Unlike the rescinded 2016 regulations, the new final rule does not include a provision for automatic updates to the salary threshold; however, the DOL has stated it intends to propose further updates to the salary thresholds at least every four years.
The new FLSA regulations do not make any changes to the FLSA duties tests, which in general also must be satisfied for an employee to qualify for the FLSA overtime exemptions.
Below is a comparison of the current and new FLSA Salary Basis Test:
|2004 FLSA regulation||NEW 2019 FLSA regulation
(effective Jan. 1, 2020, available here)
|Minimum Weekly Salary for Executive, Administrative and Professional Employees||At least $455 per week
(or $23,660 annually)
|At least $684 per week
(or $35,568 annually)
|Minimum Weekly Salary for Administrative Employees Performing Functions Related to Academic Instruction or Training||At least $455 per week ($23,660 annually), or salary equal to the entrance salary for teachers at the school||At least $684 per week ($23,660 annually), or salary equal to the entrance salary for teachers at the school|
|Minimum Annual Compensation for Highly Compensated Employees||At least $100,000 annually||At least $107,432 annually|
|Inclusion of Nondiscretionary bonuses and incentive payments||Bonuses and incentives (including commissions) count only toward the total annual compensation requirement for highly compensated employees.||Bonuses and incentives that are made at least annually can now go towards 10 percent of the standard weekly salary threshold of $684/week; the employer may make a “catch-up” payment within one pay period after the end of the year.|
Other Pending Rulemaking
In addition to the new final rule regarding the salary thresholds, the DOL has issued proposed regulations and is currently considering new rules to clarify the rules surrounding the FLSA “regular rate of pay”. These regulations are currently under consideration and open to public comment. LCW is keeping a close eye on the DOL’s rulemaking process and will publish further updates when the DOL announces its final rules.
Next Steps for Public Education Employers to Prepare For the New Regulations
Given that the new salary basis test threshold of $684 per week and highly compensated employee threshold of $107,432 annually will go into effect on January 1, 2020, public education employers should audit exempt job positions to determine which job positions are affected by these new salary basis test regulations. As noted above, full-time faculty, part-time faculty, and teaching assistants engaged in a teaching capacity should not be affected by these changes to the FLSA salary basis test, as they are exempt from the FLSA salary basis test under the FLSA’s teacher exemption.
For those exempt academic employees whose primary duties are administrative functions relating to academic instruction or training, the new FLSA salary requirement is the lower of:
- $684/week, or
- The minimum entrance salary for full-time teachers at the educational institution.
To determine if these employees may be exempt, an educational institution should first examine its entrance salary for full-time teachers. If that salary is less than $684/week, then the minimum salary for academic employees will be that entrance salary amount. If that salary is greater than $684 per week, then the minimum salary for administrative academic employees will be $684 per week.
Overtime exempt employees other than teachers or those in administrative functions relating to academic instruction or training – such as exempt, classified employees – will be subject to the new salary basis test of $684 per week or the highly compensated employees exemption of $107,432 annually, depending on what duties test the employee qualifies for.
If any exempt job positions are below or close to being below these new salary levels, employers should evaluate one of the two following options:
- Increase the salary for the exempt job position to meet or exceed the new salary levels to maintain the overtime exemption; or
- Convert the affected exempt job position to nonexempt status that would qualify for overtime.
If an impacted job position is to remain exempt, the employer should look to increase the salary levels to a level at or higher than the new salary levels. Keep in mind that the effective date for these new salary levels – January 1, 2020 – is a Wednesday. Therefore, to the extent that the relevant 7-day FLSA workweek for an affected exempt employee begins prior to that (e.g., Sunday), the employer should look to implement the increased salary level at the beginning of that workweek.
If an impacted job position will be converted to nonexempt status, the employer should carefully examine the impacts of this decision and look to take the following steps:
- Provide advance notice to the affected employee about the reclassification;
- Provide training on timekeeping and overtime policies and procedures to the affected employee and their supervisors to ensure compliance with any new overtime obligations; and
- Implement any necessary changes to the payroll system regarding the new nonexempt classification and determine what additional compensation received by the employee needs to be incorporated into the FLSA regular rate of pay for overtime calculations.
A newly nonexempt employee must accurately report work hours and comply with the agency’s overtime policies and procedures. This is critical because the FLSA imposes an affirmative obligation on employers to keep accurate time records, and requires prompt payment of wages, including overtime. Late payment of overtime and improper calculations of overtime pay are also common and costly mistakes for employers. Without accurate time and payroll records, the employer may face liability for liquidated damages (twice the amount of compensation due) in the event that an FLSA lawsuit is filed alleging overtime claims or liability for back wages. Note that although California public schools and colleges have Eleventh Amendment immunity from FLSA lawsuits by private persons, they can still be subject to damages in a lawsuit brought on an employee’s behalf by the DOL.
For California public education employers, we expect that few, if any, changes will be necessary as a result of the increased weekly threshold because the threshold is still lower than the salary of virtually all public employees who will qualify under the duties test for exemption. However, we suspect that some educational institutions will have employees who will qualify for the “highly compensated employee” exemption that would not have qualified under the $134,004 threshold proposed by the 2016 regulations. Under the “highly compensated” exemption announced today, an employee making over $107,432 does not need to meet the normal duties test, but needs only to have a primary duty of performing office or non-manual work, and customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative, or professional employee. Public educational institutions should look closely at positions that exceed the new “highly compensated” threshold to see if those positions can be classified as exempt.
To the extent that affected job positions involve represented employees, any actions taken to change wages, hours, and working conditions may also trigger an agency’s obligation to meet and confer with the pertinent employee organization over the decision or effects and impacts of such decision. Employers are urged to consult with their legal counsel or labor relations professionals regarding the impact of any meet and confer obligations.
Even if a public education institution does not have any exempt employees affected by these new salary basis test regulations, it may still be prudent to assess whether current exempt positions perform the appropriate duties to satisfy the executive, administrative, or professional exemptions, and the corresponding duties test for exemptions under the Education Code. An audit of exempt positions is also beneficial because an employer may be liable for unpaid compensation and liquidated damages going back up to three years for a willful violation of the FLSA in misclassifying an employee as overtime exempt. (29 U.S.C. sec. 255.)
LCW’s wage and hour attorneys routinely conduct FLSA audits and provide wage and hour advice and counsel to our public education clients. We are available to advise agencies on the impact of these new FLSA salary basis test regulations. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.