Because only workers who work overtime may receive overtime pay, when determining the share of workers who are misclassified Start Printed Page 51280the sample was limited to those who usually work overtime. On October 30, 2017, the Government appealed the Nevada district court's summary judgment decision to the United States Court of Appeals for the Fifth Circuit. 69 FR 22127 (“When employers, employees, as well as Wage and Hour Division investigators applied the `long' test exemption criteria in the past, distinguishing which specific activities were inherently a part of an employee's exempt work proved to be a subjective and difficult evaluative task that prompted contentious disputes.”). Due to the district court's decision invalidating the 2016 final rule, these are the salary levels the Department is currently enforcing. The salary levels that would result from each of the alternatives are set forth in section VI.C. The FLSA prescribes … The Department has periodically updated the regulations governing these tests since the FLSA's enactment in 1938. at 8, 14-20. As a result, companies will be forced to begin this practice, adding more costs in administrative ways.” Another individual wrote that the proposed rule “would create a challenge by placing a burden on the employers to exaustively [sic] track these newly nonexempt employees' hours to ensure compliance with overtime pay and other requirements. The Department used the incomplete fixed-job model to estimate changes in the regular rate of pay for Type 3 workers and the 50 percent of Type 2 workers who regularly work occasional overtime. Table 37—Summary of Year 1 Affected EAP Workers, Regulatory Costs, and Transfers by Type of Employer. The Department also described how it could revise the part 541 regulations if it were to codify this intention in a final rule. 172. [59], The Department again referenced these principles in the Kantor Report, reiterating, for example, that the salary level tests “provide[”] a ready method of screening out the obviously nonexempt employees[,]” and that employees “who do not meet the salary test are generally also found not to meet the other requirements of the regulations.” [60] Alternative Methods for Setting the HCE Total Annual Compensation Level, i. Overview and Summary of Quantified Effects, 2. This is justifiable because demographic and employment characteristics are similar across these two populations (e.g., age, gender, education, distribution across industries, share paid nonhourly). Although it seemed reasonable that some premium was paid for overtime in the absence of regulation, Barkume's assumption of a 28 percent initial overtime premium is likely too high for the salaried workers potentially affected by a change in the salary and compensation level requirements for the EAP exemptions because this assumption is based on a study of workers in Britain. [212] The Department estimated employer adjustments and transfers assuming that the patterns observed in the CPS reference week are representative of an average week in the year. 229. documents in the last year, 39 If the employer does not identify some other year period in advance, the calendar year will apply. [187] The Quarterly Journal of Economics, 87(2), 220-238, demonstrated that modest fluctuations in labor demand could justify substantial overtime premiums in the employment contract model. Methodology To Determine the Number of Potentially Affected EAP Workers, C. Determining the Revised Salary and Compensation Levels, D. Effects of Revised Salary and Compensation Levels, VII. In particular, a basic model of competitive product markets would predict that highly competitive industries with lower rates of return would adjust to increases in the marginal cost of labor arising from the rule through an overall, industry-level increase in prices and a reduction in quantity demanded based on the relative elasticities of supply and demand. First, the CPS includes all nondiscretionary bonuses and commissions, which may be used to satisfy up to 10 percent of the new standard salary level under this final rule. In short, the Department would be imposing significant administrative costs on employers for a limited effect. Workers' earnings in predicted years are earnings post employer adjustments, with overtime pay, and with ongoing wage growth based on historical growth rates (as described above). After limiting the analysis to workers covered by the FLSA and subject to the Department's part 541 regulations, several other groups of workers were identified and excluded from further analysis since this final rule is unlikely to affect them. Some commenters urged the Department to adopt a mechanism to automatically update the standard salary level and HCE total compensation levels, which they viewed as critical for ensuring that the effectiveness of the earnings thresholds does not erode over time. The commenters relying on the “mismatch” theory appear to assert that the 2004 final rule should have paired the single duties test with a higher salary threshold such as the short test because the Department was obligated to preserve the previous structure of pairing a more rigorous duties test with a lower salary level test, or a less rigorous duties test with a higher salary level. All Type 3 workers and half of Type 2 employees (304,500) are assumed to work predictable overtime. And it presents a circularity problem: The Kantor method would determine the population of exempt salaried employees, while being determined by the make-up of that population. Even so, the Department notes that this final rule will strengthen overtime protections for 4.1 million workers who currently fail the standard duties test and now will also earn below the standard salary level. Businesses (SUSB), which reports 7.76 million establishments with paid employees. The Department did not propose any of these changes in the NPRM, and declines to make such changes in this final rule. 551.210 ) ( must meet salary test and perform such duties as system analysis, program/system design, or program/system testing, documentation, and modification). As previously discussed, on August 31, 2017, the U.S. District Court for Eastern District of Texas declared the 2016 final rule invalid, and the Department's appeal of that decision is being held in abeyance. On March 22, 2019, the Department issued its proposal to update and revise the regulations issued under section 13(a)(1) of the FLSA. In this case, a second informative baseline is the 2016 final rule, which is currently in the Code of Federal Regulations (CFR). However, in the 2016 final rule, the Department for the first time adopted a mechanism to automatically update the earnings thresholds every three years, applying the same methodology used to initially set each threshold in that rulemaking. and are more satisfied with their benefits. After determining the potential number of EAP cases that the final rule may avoid, the Department examined a selection of 56 FLSA cases concluded between 2012 and 2015 that contained litigation cost information to estimate the average costs of litigation to assign Start Printed Page 51281to the potentially avoided EAP cases. State and local payroll and revenue data from State and Local Government Finances Summary: FY2016 are used for the Public Administration industry. With the Jan. 1, 2020 effective date on the horizon, employers should take steps to prepare: Review positions currently classified as exempt from overtime pay. (ii) An employee who does not work a full 52-week period for the employer, either because the employee is newly hired after the beginning of this period or ends the employment before the end of this period, may qualify for exemption if the employee receives a pro rata portion of the minimum amount established in paragraph (a)(3) of this section, based upon the number of weeks that the employee will be or has been employed. (2019). See id. 209. [219] Several commenters stated that the proposal would inappropriately exempt employees who perform significant amounts of nonexempt work. See 275 F. Supp. To the extent that commenters are concerned about the exemption status of seasonal employees, the Department notes that “[e]xempt employees need not be paid for any workweek in which they perform no work.” 29 CFR 541.602(a)(1). The Department estimates that in 2020, 1.2 million currently exempt employees who earn at least $455 per week but less than the standard salary level of $684 per week will, without some intervening action by their employers, gain overtime eligibility. A regulation with a smaller aggregate effect is not likely to have a measurable effect in macro-economic terms unless it is highly focused on a particular geographic region or economic sector, which is not the case with this final rule. By Year 10, additional costs and payroll for small businesses have decreased from $231.9 million in Year 1 to $118.5 million (Table 36). The 2012 Census of Governments report includes a breakdown of state and local governments by the population of their underlying jurisdiction, allowing us to estimate the number of governments that are small. This is consistent with the duties test's historical function, and will alleviate a major concern—overemphasis on the salary level test—that led to the 2016 rule's invalidation. Such employers already have in place recordkeeping systems and standard operating procedures for ensuring employees work overtime under only employer-prescribed circumstances. and generally must be paid on a salary basis at least the amount specified in the regulations. The share of workers considered small in nonprofit, for profit, and government entities is therefore the weighted average of the shares for the industries that compose these categories. at 10911 (citing 69 FR 22213, 22253). 2. [179] The court determined that a salary level that “supplant[s] an analysis of an employee's job duties” conflicts with Congress's command to exempt bona fide executive, administrative, and professional employees. The Department recognizes that, in addition to conferring minimum wage and overtime protections on newly nonexempt employees, an updated salary level clarifies and strengthens the nonexempt status of employees who fail the duties test and earn between the previous salary level and the new one (i.e., those who are and will remain nonexempt), and thereby reduces the risk that those employees will be misclassified as exempt. The updates specifically relate to executive, administrative, and professional employees. 553(d), and the 60 days mandated for a “major rule” under the Congressional Review Act, 5 U.S.C. Employers are not required to report EAP exempt workers to any central agency or as part of any employee or establishment survey. If, for example, an employer simply pays each affected employee the overtime premium for each hour worked in excess of 40 hours per week, without making any adjustments to wages, hours or duties, such an approach would maximize transfers from employers to employees. Although the CPS MORG does not identify workers paid on a fee basis, they are considered nonhourly workers in the CPS and consequently are correctly classified as “salaried” (as was done in the 2004 final rule). Balkin, D.B., & Griffeth, R.W. 84 FR 10908-09; see also 69 FR 22126 (explaining that “the `long' duties test [had], as a practical matter, become effectively dormant” due to outdated salary levels, and quoting commenters who described the long duties test as “inoperative,” “rarely, if ever, used,” “largely . Therefore, total estimated Year 1 adjustment costs will be $68.2 million ($43.38 × 1.25 hours × 1.3 million workers). Bell, D. N. F. and Hart, R. A. In other words, in each year affected EAP workers were identified as those who would be exempt in Year 1 absent any change to the current regulations but have projected earnings in the future year that are less than the relevant salary level. FLSA Exemption Determination Checklist - Administrative Exemption. However, as the Department previously noted, this regulation does not require that workers who become nonexempt must be Start Printed Page 51279reclassified as hourly nor does it require that hourly workers receive fewer benefits than salaried workers. Also in 1949, the Department established a second, less-stringent duties test for each exemption, which applied to employees paid at or above a higher “short test” salary level. To be exempt under the standard EAP test, the employee must: The 2004 final rule's HCE test allows certain highly-paid employees to qualify for exemption as long as they customarily and regularly perform one or more exempt job duties. 2017 Census of Agriculture: United States Summary and State Data: Volume 1, Geographic Area Series, Part 51. Start Printed Page 51235. This feature is not available for this document. The FLSA generally requires covered employers to compensate employees at one and one-half times the regular rate of pay for all hours worked over 40 in a single work week or in excess of a FLSA-defined work period. First, this final rule's increases to the earnings thresholds are much more modest than the 2016 final rule's, and the associated impacts are correspondingly more moderate. In addition, some non-profit organizations asked the Department to work with other federal agencies to create a mechanism that non-profits with government grants and contracts could use to adjust reimbursement rates to cover unanticipated increased costs, such as labor costs due to this rule. The Department believes that HCE alternative 1 is inappropriate because some increase to the HCE threshold is necessary to ensure that the HCE threshold continues to appropriately complement the more lenient HCE duties test. 11. at 32051 (“In keeping with our practice, the Department relies on the most up-to-date data available to derive the final salary level[.]”). Because in the final rule the Department is using pooled CPS MORG data to set the HCE compensation level, it used the same data set to calculate this alternative compensation level. The Department has promulgated regulations at part 516 to establish the basic FLSA recordkeeping requirements, which are approved under OMB control number 1235-0018. As a result, both employees and employers are accustomed to these tests. The salary level test provides certainty for employers and employees, as well as efficiency for government enforcement agencies. The Department believes that this level avoids unduly burdensome costs associated with evaluating, under the Start Printed Page 51303standard duties test, the exemption statuses of large numbers of highly-paid white collar employees, many of whom would have remained exempt even under that test, while providing a meaningful and appropriate complement to the more lenient HCE duties test. Any such final payment made after the end of the 52-week period may count only toward the prior year's total annual compensation and not toward the total annual compensation in the year it was paid. [44] [17] The final rule will transfer income to affected workers who work in excess of 40 hours per week. 275 F. Supp. of the issuing agency. 97. FAIR LABOR STANDARDS ACT (FLSA) QUESTIONNAIRE . The Department agrees with the commenters who expressed the view that this update to the regulations is “long overdue,” and with those who encouraged the Department to increase the salary level as soon as possible. The final rule takes effect January 1, 2020. The Fair Labor Standards Act (FLSA) is a federal law with enforcement . Employee: _____ Job Title: _____ 225. If covered by both the federal Fair Labor Standards Act (FLSA) and a CA labor code/wage order, then the employee must qualify under both exemptions to be exempt from … The wage growth rate is calculated as the compound annual growth rate in median wages using the historical CPS MORG data for occupation-industry categories from 2007 to 2017. 244. [221] The estimated total perpetual annualized costs of the 2016 rule are $676.9 million using a 7 percent discount rate. The salary exempt test is a part of the Fair Labor Standards Act (FLSA) which is used to determine whether employees are exempt or … Thus, total Year 1 transfer payments attributable to this final rule will total $396.4 million. The majority of these transfers will be attributable to the FLSA's overtime provision; a smaller share will be attributable to the FLSA's minimum wage requirement. By contrast, the Department concludes that reapplying the 2004 final rule's methodology to set the standard salary level appropriately accommodates employers operating in low-wage regions.[268]. Management costs will recur each year for all affected EAP workers whose hours are adjusted. 29 U.S.C. Others stated that employees would lose benefits due to being reclassified as hourly workers. For the standard exemption, the relationship between earnings and exemption status is not linear and is better represented with a gamma distribution. Each document posted on the site includes a link to the Thus, if this method is applied to ten workers who each have a 60 percent probability of being exempt, six workers would be expected to be designated as exempt. How Are Hours Worked and Wages Affected by Labor Regulations? Table 2—Summary of Regulatory Costs and Transfers, Standard and HCE Salary Levels, This section explains the methodology used to estimate the number of workers who are subject to the part 541 regulations and the number of potentially affected EAP workers. 7. After controlling for underlying trends in hours worked over 20 years, he found changes in overtime coverage had no impact on the prevalence of overtime hours worked. This rule is considered an Executive Order 13771 deregulatory action. . This rulemaking will also give employees higher earnings in the form of transfers of income from employers to employees. also defines public agencies to include the government of a state or political subdivision thereof, or any interstate governmental agency. Annual payroll was estimated based on the CPS weekly earnings of workers by industry size. establishing the XML-based Federal Register as an ACFR-sanctioned Copies of this final rule may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). DOWNLOAD THIS FORM: Choose a link below to begin downloading. [120] Hereafter, unless otherwise specified, annualized values will be presented using the 7 percent real discount rate. The Department disagrees with the proposition advanced by some employee representatives that this Start Printed Page 51242articulation of the salary level's modest purpose misreads the Weiss and Kantor reports, or that it applies only when paired with the long duties test. Exempt Worksheet Instructions: Complete this after reviewing the employee's current job description and consulting with the employee's supervisor. For the reasons set out in the preamble, the Department of Labor amends title 29 of the Code of Federal Regulations part 541 as follows: 1. Transfers Due to the Minimum Wage Provision, 3. The Department has therefore engaged in this rulemaking to realign the salary level with its appropriate limited purpose, to address the concerns about the 2016 final rule identified by the district court, and to update the salary level in light of increased employee earnings. The Department calculated the standard salary level and the HCE total annual compensation level using publicly-available CPS microdata (compiled by the U.S. Census Bureau). Although most affected EAP workers who typically do not work overtime are unlikely to experience significant Start Printed Page 51263changes in their daily work routine, those who regularly work overtime may experience significant changes. Therefore, the Department has chosen to use the 2004 methodology, which, as noted above, screens out obviously nonexempt workers, works well with the standard duties test, and has never been challenged during the fifteen years in which it has been enforced by the Department. 9. The clarification, consolidation, or simplification of compliance and reporting requirements for small entities. The district court's summary judgment decision invalidating the 2016 final rule stated that because the standard salary level established by the 2016 final rule was unlawful, the mechanism to automatically update that standard salary level was “similarly . In § 541.200, revise paragraph (a)(1) to read as follows: (1) Compensated on a salary or fee basis pursuant to § 541.600 at a rate of not less than $684 per week (or $455 per week if employed in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands by employers other than the Federal government, or $380 per week if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities; 4. As discussed in detail below, most affected workers do not currently work overtime, and there is no reason to expect their hours worked to change when their status changes from exempt to nonexempt. The employee may be exempt from overtime if he or she meets both the wage (or salary) criteria, in addition to passing the duties test. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least $684 each week paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. However, as discussed in section VI.B.iii, the estimates of workers subject to the FLSA include workers employed by enterprises that do not meet the enterprise coverage requirements because there is no data set that would adequately inform an estimate of the size of this worker population. Employer adjustments are made in the first year the worker is affected and then applied to all future years in which the worker continues to be affected (unless the worker switches to a Type 4 worker). Thus, for example, an exempt employee guaranteed compensation of at least $725 for any week in which the employee performs any work, and who normally works four or five shifts each week, may be paid $210 per shift without violating the $684-per-week salary basis requirement. To earn less than the federal or most state minimum wages, this set of workers must work many hours per week. Volume 1 641-92. https://www.sciencedirect.com/science/article/abs/pii/S1573446386010155. . The ratio of revenues to payroll for small businesses ranged from 2.15 (social assistance) to 43.40 (petroleum and coal products manufacturing), with an average over all sectors of 5.35. See Appendix A: Methodology for Estimating Exemption Status, contained in the rulemaking docket, for details on how this population was identified. These comments were mostly general statements, often included in a list of changes the employer intends to make in response to the increased salary threshold. That is, if 50 percent of workers in an industry are employed in small entities, then on average small entities are expected to employ 1 out of every 2 exempt EAP workers in this industry.247 The Department applied these probabilities to the population of exempt EAP workers to find the number of workers (total exempt EAP workers and total affected by the rule) that small entities employ. Because no information is available on how affected workers are distributed among small establishments that employ affected workers, the Department estimated a range for effects. Several commenters disputed that nondiscretionary bonuses and incentive payments are indicative of exempt status. An FLSA covered employer must maintain the records for such period of time and make such reports as prescribed by regulations issued by the Secretary of Labor. As such, the Department was under no legal obligation to preserve the previous salary/duties structure in the 2004 final rule. Businesses 2016, https://www.census.gov/programs-surveys/susb.html. 14. For each exemption, qualified employees must have a primary duty that meets requirements set forth in the FLSA regulations. [178] The Own-Wage Elasticity of Labor Demand: A Meta-Regression Analysis. [199] primarily perform exempt work, as defined by the regulations (the standard duties test). However, the Department does not expect that such firms will spend “many hours a week” on such tasks, and believes an estimate of 10 minutes per worker per week is appropriate. Total annual compensation does not include board, lodging and other facilities as defined in § 541.606, and does not include payments for medical insurance, payments for life insurance, contributions to retirement plans and the cost of other fringe benefits. 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