Date: March 11, 2019

The federal Fair Labor Standards Act (“FLSA”) requires employers to pay at least minimum wage for all hours worked and overtime at one and one-half times employees’ regular hourly rates of pay for all hours over forty (40) in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both the minimum wage and overtime for employees employed in bona fide executive, administrative, professional (the “white collar exemptions”) and outside sales positions. Sections 13(a)(1) and 13(a)(17) also exempts certain computer employees. Certain “Highly Compensated Employees” earning $100,000 or more per year also are deemed exempt.

On March 7, 2019, the United States Department of Labor (“USDOL”) issued a Notice of Proposed Rulemaking (“NPRM”) that would make more than one million more workers eligible for overtime pay. Previously, employees coming under the white collar exemptions also needed to earn $455/week ($23,660/year) to be exempt. The NPRM proposes increasing the amount to $679/week ($35,308), which would result in employers needing to pay more employees overtime. The proposal does not call for automatically updating of the salary threshold. In addition, the USDOL proposal would raise the bar for Highly Compensated Employees from $100,000 to $147,414. Finally, for the first time, it is proposed that employers be allowed to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to ten percent (10%) of the standard salary level.

The federal and state wage and hour laws are some of the most misunderstood and misapplied employment statutes. If your Company has questions concerning any employee’s eligibility for overtime or whether your workers are independent contractors or employees, we are here to help.