3 Things to Consider When Handling Overtime Pay

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3 Things to Consider When Handling Overtime Pay

As is the case with many employment related statutes, exactly how and what your organization must adhere to depends largely on an often complex combination of state and federal law, as well as any employer specific policies. Overtime pay is certainly no exception. Overtime actually functions much like minimum wage in that the employer must pay to the higher standard (either state or federal), i.e. the standard that results in the largest pay out to the employee working overtime hours.
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Begin the Conversation Now: Developing an FLSA Communication Plan

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Begin the Conversation Now: Developing an FLSA Communication Plan

The U.S. Department of Labor passed legislation regarding the FLSA Overtime Rule in 2016. This new ruling, which established a new salary threshold, effective December 1, 2016, prompts many organizations to reevaluate and update their policies and procedures in relation to employees who are currently classified as exempt.


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Questions Answered About the Proposed FLSA Changes: Overtime Rule

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changing from non-exempt to exempt proposed flsa changes flsa proposed changes

Accurately categorizing your employees as “exempt” or “non-exempt” from the Fair Labor Standards Act (FLSA) sounds like a fairly straightforward task. But a closer look at the finer details of the FLSA can quickly turn an easy yes/no question into a complex, and somewhat subjective, analysis or job duties, titles, and compensation.

According to the U.S. Department of Labor’s (DOL) Wage & Hour Division, the current administration is looking to, “simplify the overtime rules for employers and workers alike,” specifically in the area of white collar exemptions, and has recently completed a comment period for new set of proposed overtime rules.

Although it is up for debate whether or not the proposed rules have achieved this goal of simplification, employers need to be aware of what these changes are and begin to prepare themselves for 2016 when some version of these rules are likely to be implemented.

What is changing (more than likely)?

The salary level required to be classified as an exempt employee for both standard and Highly Compensated Employees (HCEs) will increase.

The existing standard salary threshold to qualify as exempt, is set at $455 per week. The existing HCE threshold is $100,000. The proposed new rule sets the threshold for both categories based on average weekly earnings for full-time salaried workers. For standard salaried employees the 40th percentile mark will be used and for HCEs, the 90th percentile will be used. In terms of what these percentiles mean for setting actual dollar amounts, based on 2016 projections from the DOL the new thresholds will be $970 in average weekly earnings for the standard level and $122,148 annually for HCEs.

The bottom line: The specific dollar figures cited in the proposed language may be adjusted in the final rule, but in short, the salary amounts required to be considered exempt from the white collar overtime rules are going up in 2016.

Both salary levels (standard & HCE) will be scheduled to increase on an annual basis.

The numbers currently on the books have not changed since the last set of rule changes in 2004. The latest iteration of the white-collar exemption language will increase annually in one of two ways, either: (1) attaching directly to the 40th (standard) and 90th (HCE) percentiles of earnings for full-time salaried employees or (2) adjusting both levels based on inflation (CPI-U).

The bottom line: Instead of going through the rulemaking process to increase the exemption thresholds, they will go up on an annual basis—based on what statistic is still to be determined.

What else was being considered as part of the proposed rulemaking during the comment period?

The DOL was looking for comments on two additional items, but is not planning to make regulatory changes based on this feedback.

(1) The so called “duty test”, which is the next step in determining an employee’s exempt status, was also up for discussion. However, instead of implementing wholesale, official regulatory changes, the DOL was looking for additional examples of job titles and practical job duties that could be used as guidance for determining exemption status. (2) In addition, they were gathering opinions about whether or not nondiscretionary bonuses can/should be factored into the average weekly earnings of the standard salary calculation.

The bottom line: The DOL wants to gauge if the “duty test” is working as it should and provide more practical guidance to make it more objective. However, they don’t plan to incorporate any official regulatory changes regarding “duties” into the final rule at this time.

What can employers do to prepare?

Until the final rule is announced, the key for employers will be to begin gathering the information necessary to apply the new test once it is known. Not only will this head off any current misclassification that you may uncover in the process, but it also situates employers to act as soon as the DOL releases the final language.

First and foremost, employers may want to perform an internal audit of their job titles and descriptions to ensure that they are appropriately classified as exempt or non-exempt. While employers always make sure jobs are classified correctly at the outset, these duties can look very different a few years down the road.

As individuals and job duties evolve depending on the skill set of the employee, the needs of the organization, or even changes to technology, HR isn’t always kept apprised of these changes in a timely fashion.

Taking stock of exactly what duties are being performed and making any necessary changes to job descriptions on a fairly regular basis can help prevent misclassification. In the case of the proposed changes to the FLSA, going through this internal review process is particularly important for any non-exempt employees making more than the current $23,600 figure, but less than the new threshold.

The bottom line: Be prepared. There is some down time between the close of the comment period earlier this month and the expected announcement of the final rule in 2016. Make use of this time to gather the job duty information now, so you can act promptly and efficiently when the time comes.

ERC Training provides FLSA Training which provides a high-level review of the law's elements and requirements.

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New Rulings and Regulations Impacting HR

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New Rulings and Regulations Impacting HR

From marriage equality to proposed changes to overtime exemptions (not to mention the Supreme Court ruling that again affirmed the ACA), HR professionals across the country are taking a collective breath after a week of landmark rulings and proposed new regulations that impact the employment landscape. Here is what employers need to know (and do) now.
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Employers Tend to Pay Shift Employees More

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Employers Tend to Pay Shift Employees More

The results of the 2011 ERC Pay Differential Survey show that Northeast Ohio employers tend to pay shift employees more than non-shift employees, specifically those that work second and third shifts.

Sixty-six percent of employers offer shift differentials for second shifts on weekdays and 55% provide shift differentials for third shifts on weekdays.

Organizations typically provide a flat premium amount per hour as a pay differential, and on average, provide a larger pay differential to employees working weekday third shifts than employees on weekday second shifts.

Employers reported providing the largest pay differential to production, maintenance, and service leads or group leaders on both weekday second and third shifts.

Employees in non-standard shifts experience more challenges such as disrupted sleep cycles, difficulties maintaining family routines, and less social exposure than weekday first shift employees.

As a result, pay differentials are a useful tool that employers can use to incent employees to work second and third shifts or recruit employees for these roles.

View ERC's Pay Differential Survey Survey Results

This survey reports on common pay differentials from Northeast Ohio employers for hourly employees, including shift differentials, lead premiums, overtime, and on-call pay practices.

View the Results