CLIENT ALERT
May 19, 2016
DOL Issues Final Rule More Than Doubling FLSA
Minimum Salary Level Required for Overtime
Exemptions
SPEED READ
l
Based on a new rule issued by the Department of Labor, the minimum salary for most exemptions from the Fair Labor
Standards Act’s overtime pay requirement will increase from $23,660 per year to $47,476 per year.
l
The duties tests, which must also be met to qualify for any exemption, will remain unchanged.
l
Most employees who are currently classified as exempt and receive a salary of less than $47,476 per year will need either
to be provided with a raise or to be reclassified to nonexempt status, which will entail maintaining time records and paying
overtime.
l
The new standard goes into effect on December 1, 2016.
Increase in Minimum Salary for Most Exemptions
On May 18, 2016, the Department of Labor (DOL) published its final rule concerning the minimum salary level necessary in most cases for
an employer to qualify as exempt from overtime pay under the Fair Labor Standards Act (FLSA). In the absence of an exemption, the FLSA
provides that an employee is entitled to receive pay at the rate of time and onehalf for all hours worked over 40 in a week. Under the new
rule, which goes into effect on December 1, 2016, the minimum salary level for potential application of most exemptions from overtime pay
is $47,476 per year ($913 per week). This rate is based on the 40th percentile of pay for fulltime salaried workers in the lowest wage
Census region, which is currently the South.
By way of background, the most frequently relied upon exemptions from the FLSA’s overtime pay standard are the “white collar exemptions,”
which apply to executive, administrative, professional, computer and outside sales employees, as those terms are defined in FLSA
regulations at 29 C.F.R. Part 541. The regulations set forth standards for job duties to satisfy these exemptions and salary standards. The
new rule will not affect the duties tests.
With the exception of outside sales employees and certain other limited categories of employees, all employees who meet one of the
duties tests under the FLSA must also be paid at a minimum salary level to qualify as exempt. Currently, that minimum salary level is an
annual rate of $23,660 ($455 per week). Under the new rule, that minimum threshold will more than double to the new rate of $47,476
($913 per week) on December 1, 2016. That level will be automatically updated every three years, beginning on January 1, 2020, to equal
the 40th percentile of fulltime salaried workers’ pay in the lowestwage Census region at the time of the adjustment. The DOL will post the
new minimum threshold salary on its website at least 150 days before each adjustment date.
Effect of Bonuses and Incentive Pay
The final rule also makes one change regarding what pay counts in determining if the minimum salary has been met. Currently, only
regular salary payments count toward the $23,660 minimum salary. Under the new rule, up to 10% of the new minimum salary level may be
satisfied by nondiscretionary bonuses and incentive payments, including commissions, provided that those amounts are paid on at least a
quarterly basis. If an earned bonus or incentive payment is not high enough to satisfy the standard, the employer may make a catchup
payment to ensure that the employee does not fall below the minimum salary level. Thus, the minimum salary level for an employee who
receives qualifying supplemental payments of at least $1,187 per quarter ($4,758 per year) will be $42,728 per year ($822 per week).
Increased Pay Level for Highly Compensated Employees
The final rule also increases the threshold pay level for being classified as a “highly compensated employee.” That classification was
introduced in 2004. For employees who meet the pay threshold for the highly compensated employee classification, the duties tests are
relaxed, although not eliminated. The minimum annual pay level to qualify as a highly compensated employee will increase from $100,000
per year to $134,004 per year with adjustments. The highly compensated employee minimum salary threshold will be adjusted every three
years to match the 90th percentile for fulltime salaried employees nationwide, on the same schedule and with the same advance notice
from the DOL as applies to the minimum salary.
As is currently the case, the total annual pay may continue to be satisfied by nondiscretionary bonuses and commissions (with a catchup
payment if necessary) as well as salary. However, enough will need to be paid in salary to meet the new minimum salary standard of
$47,476 per year (without the 10% adjustment discussed above).
Limits on the Effect of the New Rule
Previously existing exceptions to the general applicability of the minimum salary standard take on added importance with the establishment
of the new minimum salary level. For example, academic administrative employees may satisfy the salary standard if their pay is at least
equal to that of entering teachers in the educational establishment, even if that is below the new generally applicable minimum salary.
Other classifications of exempt employees are not subject to the salary standard. These include the following:
l
Outside sales employees
l
Teachers
l
Doctors practicing medicine
l
Lawyers practicing law
l
Medical residents and medical interns
l
Employees covered by the FLSA’s Motor Carrier Act exemption
l
Business owners with at least a bona fide 20% vested equity interest in their employer who are actively engaged in management of
the employer
In addition, employers should be cognizant that state law may impose further restrictions. For example, California’s minimum salary
. standard for exempt status is set at twice its minimum wage. Due to statutory annual increases, California’s minimum salary level for
exempt status will exceed the FLSA standard beginning January 1, 2019, with an annual rate of $49,920 ($960 per week).
Next Steps
The new DOL rule will require that some employees either receive salary increases to meet the new standards or be reclassified to non
exempt status. If employees are reclassified to nonexempt status, employers should consider whether to retain salaried status while
paying overtime when required or to convert employees to hourly pay.
In those states where it is permissible to do so, employers may want to consider utilizing the “fluctuating workweek” method of payment to
control overtime costs for salaried nonexempt employees. Use of this methodology can result in overtime costs of less than onethird the
level that would apply to an hourly employee with the same base rate.
Regardless of whether employees who are reclassified as nonexempt remain salaried or are converted to hourly pay status, employers
will need to consider what base rate to use, including whether to take expected overtime into account in setting the base rate.
To the extent that employers use bonuses or commissions to help satisfy the minimum salary threshold, they need to ensure that the
bonus or commission plan meets the requirements under the new rule.
Employers will also need to ensure that they maintain proper time records for any reclassified employees (as well as all other nonexempt
employees). In doing so, employers need to be careful to ensure that all time worked is counted, including offhours work activities, such as
responding to workrelated emails.
Finally, employers may also consider steps to restrict overtime work to control overtime pay obligations.
For any questions on the DOL’s new rule, please contact a member of Goodwin Procter’s Labor & Employment Practice.
Author: Robert M. Hale
GET IN TOUCH
For more information about the contents of this alert,
please contact:
Robert Hale
Partner
+1 617 570 1252
rhale@goodwinprocter.com
© 2016 Goodwin Procter LLP. All rights reserved. This informational piece, which may be considered advertising under the ethical rules of
certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice
by Goodwin Procter LLP, Goodwin Procter (UK) LLP or their attorneys. Prior results do not guarantee similar outcome.
Goodwin Procter LLP is a limited liability partnership which operates in the United States and has a principal law office located at 53 State
Street, Boston, MA 02109. Goodwin Procter (UK) LLP is a separate limited liability partnership registered in England and Wales with
registered number OC362294. Its registered office is at Tower 42, 25 Old Broad Street, London EC2N 1HQ. A list of the names of the
members of Goodwin Procter (UK) LLP is available for inspection at the registered office. Goodwin Procter (UK) LLP is authorized and
regulated by the Solicitors Regulation Authority.
2
.