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  • With recent changes to the Fair Labor Standards Act (FLSA), many business owners – and their employees – are trying to figure out exactly who qualifies as exempt from overtime pay under the new rules. Unless you’re ready to dig into Department of Labor (DOL) fact sheets and other documents, it’s not always clear just what counts as white collar exemption these days. To help, we’ve put together a breakdown of these exemptions to help you properly classify your employees.

    A group of white collar exempt employees at a business.

    What Qualifies White Collar Employees to be Exempt?

    There are three tests that employees must pass in order to classify them as exempt.

    • The salary basis test – Exempt employees must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed
    • The salary level test – Exempt employees must meet the threshold for minimum weekly salary
    • The duties test – Exempt employees must primarily perform a list of set duties

    The thresholds for the salary level changed as of Jan. 1, 2020. In the past, the minimum salary threshold was $455 per week. The recent rule changes officially raised the threshold to $684 per week. That equates to a $35,568 annual salary, 10 percent of which can come via nondiscretionary bonuses, incentives, and commissions that are paid out each year or more frequently. 

    There are also separate stipulations for “highly compensated employees” (HCE). The salary threshold for this group raised from $100,000 to $107,432 per year. Unlike other employees classified as exempt, HCEs face a “relaxed” duties test according to the Society for Human Resources Management (SHRM).

    The Different Exempt Employee Classifications

    While the salary thresholds have changed, the employee classifications listed as exempt have not. These classifications are not based on job titles. Instead, certain types of duties are used to mark an employee for exemption. The DOL lists the following groups as exempt, each with their own duties tests.

    • Executive
    • Administrative
    • Professional
    • Computer
    • Outside sales

    Executive Exemption

    To be considered an executive employee, a person must manage an enterprise, or a recognized department or subdivision of that enterprise, as his or her primary duty. This definition also states that an executive employee must regularly oversee and direct at least two or more full-time employees (or the equivalent in part-time employees). In addition, this employee must have some influence on hiring or firing other employees, whether he or she can outright terminate employees or can influence decisions related to any other type of status change for other employees. There is also a stipulation that any employees who are actively engaged in management and own at least 20 percent equity interest in the enterprise in their place of employment are considered exempt.

    Administrative Exemption

    Administrative employees are judged by a pair of tests. First, the employee must primarily perform office or non-manual work that is directly related to management or general business operations. Second, administrative employees must “exercise of discretion and independent judgment with respect to matters of significance” which refers to the level of importance or consequence of their primary duties. This discretion and judgment implies that an administrative employee evaluates various courses of action and has authority to decide which is best for the business.

    Professional Exemption

    The DOL has guidelines for two different types of exempt professional employees: learned professionals and creative professionals. Learned professionals must primarily perform work that requires “advanced knowledge.” This knowledge involves work that requires consistent discretion and judgment and must be “predominantly intellectual in character.” The DOL also stipulates that this knowledge be in a field of science or learning. As for creative professionals, their primary work should require a form of invention, imagination, originality, or talent in a recognized artistic or creative field.

    Computer Exemption

    Employees classified under the computer exemption are those employed as a systems analyst, programmer, software engineer, or some other type of skilled individual who operates in the computer field (not including manufacturing or repair). The DOL also stipulates that these employees’ primary duties involve one or more of the following tasks.

    • The application of systems analysis techniques and procedures to determine hardware, software, or system functional specifications
    • The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes based on and related to user or system design specifications
    • The design, documentation, testing, creation, or modification of computer programs related to machine operating systems

    Outside Sales Exemption

    Unlike the other classifications, the FLSA’s salary requirements do not apply to outside sales employees. To be considered part of this exemption, an employee’s primary duty must involve either making sales or obtaining orders/contracts for either services or for the use of facilities. In addition, an outside sales exempt employee must regularly work outside of his or her employers place(s) of business.

    Why is it So Important to Correctly Classify Exempt Employees?

    Employee misclassification can lead to a series of issues. Not only can misclassification impact the compensation for certain employees, it can also affect benefit plan eligibility, payroll taxes, and other crucial details. Not only can these mistakes be a huge issue for your employees – Joe Schmo from the warehouse won’t be thrilled if he’s classified as exempt – you’re putting your business at risk with the law as well.

    There are serious financial consequences if the Bureau of Workers’ Compensation (BWC) finds out that you’ve misclassified employees. There are a variety of potential penalties you can face depending on the severity of the situation:

    • The collection of unpaid wages
    • Back taxes
    • Additional penalties for failing to deduct and withhold taxes for misclassified employees
    • Punitive damages from lawsuits for unpaid wages and taxes

    In addition to the initial penalties, you can bet that you’ll end up on the BWC’s radar. Businesses that misclassify employees are known as potential repeat offenders, which means that these penalties will make it more likely for the Department of Labor and OSHA to audit your business in the future, even if the initial misclassification was the result of a simple mistake.

    Protect Your Business from Misclassification Mistakes

    Proper employee classification is very important, but it’s not necessarily easy to make the right call for every employee if you haven’t spent the time necessary to learn all the appropriate classifications. Meanwhile, you still have a business to run even after you’re done trying to figure out tedious HR management tasks.

    While you may not have extensive HR expertise, the experts at GMS do. In addition to helping you avoid costly misclassification issues, we can help you simplify and strengthen your business through payroll management, employee benefits administration, and other crucial tasks. Contact GMS today to talk to us about how we can help you save precious time and protect your business through professional HR management.

  • After years of proposed changes to overtime laws, the Department of Labor (DOL)’s new updates finally went into effect at the beginning of 2020. The new salary levels make roughly 1.3 million more workers eligible for overtime pay. This news means business owners across the country may have some work to do to keep up with these changes.

    While the new standard salary level is a notable difference, it’s not the only change the DOL made. The department also revised rules for highly-compensated employees, regulations on overtime pay calculations, and other crucial details. To help, we broke down exactly what the DOL changed to help you know where your business stands and what you should do next.

    A clock tracking time for employees now eligible for overtime and papers documenting business numbers like regular rate calculations.

    Which Employees are Now Eligible for Overtime?

    Currently, the Fair Labor Standards Act sets the salary threshold for overtime at $35,568, which equates to $684 per week. Previously, the threshold was $23,660, or $455 per week. Those employees who meet the requirements set by the DOL are entitled to earn overtime pay for any hours worked past 40 in a given week. The pay for those extra hours is set at one-and-a-half times that employee’s standard rate of pay, which is the same as before. 

    In addition, highly compensated employees must now earn at least $107,432 ($684 of which must be paid weekly as either a salary or fee) instead of the old rate of $100,000. The new rules also maintain that employers can count annual (or more frequent) nondiscretionary bonuses and incentive payments as up to 10 percent of the minimum salary threshold.

    This salary threshold does not apply to all employees, however. The new rules still provide overtime protections to blue-collar workers, which means they are eligible for overtime even if they make more than $684 per week. Similarly, white-collar employees still do not receive these same overtime protections as long as they meet certain criteria for exemption. 

    In addition to meeting the new salary threshold, white-collar employees are considered exempt based on the duties they perform and if they’re paid a predetermined, fixed salary that is not subject to reduction. There were no changes to the preexisting duties tests, so owners can use the same criteria for exemption as in the past. For a detailed breakdown of those exact duties, check out our post on navigating white-collar exemptions.

    What Applies to Regular Rate Calculations for Overtime?

    Once you identify which employees are eligible for overtime pay, there’s still the matter of having to pay them for their extra hours. However, it’s not always easy to identify what affects an employee’s regular rate of pay.

    The FLSA identifies an employee’s “regular rate” as the rate that the employee is paid per hour. This doesn’t mean that the employee needs to be compensated on an hourly basis. Instead, it’s simply a calculation of how much the worker makes over the course of an hour compared to his or her salary, commission, and other compensation for all non-overtime hours worked in a workweek. As such, it’s relatively simple to calculate an employee whose compensation consists of only hourly pay – multiply that employee’s total hourly rate by the number of overtime hours worked.

    However, these calculations are much more complicated once you factor in other forms of compensation. The FLSA identifies that the rate should cover compensation that “include(s) all remuneration for employment paid to, or on behalf of, the employee,” such as bonuses, commissions and other forms of compensation. The DOL’s final rule added a list of exclusions that do not apply to overtime pay to address the confusion over what is considered part of the regular rate of pay. Per the DOL, these exclusions include:

    • The cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access/fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance
    • Payments for unused paid leave, including paid sick leave or paid time off
    • Payments of certain penalties required under state and local scheduling laws
    • Reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”
    • Certain sign-on bonuses and longevity bonuses
    • The cost of office coffee and snacks to employees as gifts
    • Discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples 
    • Contributions to benefit plans for accidents, unemployment, legal services, or other events that could cause future financial hardship or expense

    What Should an Owner Do About the New Overtime Rules?

    While some of the exact details have changed since the initial plans to update the overtime rules were announced back in March of 2019, our advice remains largely the same as it was that spring. First, you’ll need to evaluate your employees and identify who is now eligible for overtime and how much overtime you expect them to work (if any). If you do have employees who will now earn overtime, you’ll need to decide how you want to handle these new costs:

    • Pay newly-eligible employees overtime pay for the extra hours they accrue
    • Limit employees to 40 hours per week to prevent them from earning overtime
    • Determine how much certain employees would make in expected overtime and bump their pay to above the salary threshold if that ends up being less costly
    • Adjust salaries for new employees to account for expected overtime costs

    Each of these options has its own benefits and drawbacks, so deciding which route is best for your company largely depends on you and your workforce. Regardless of your decision, you’ll need to make sure that whatever you do ensures that your business is compliant with the new overtime rules so that you don’t open yourself up to thousands of dollars in fines and other potential penalties.

    How Can I Stay Ahead of New Regulations?

    The new overtime rules are just another major change that forces business owners to change how they manage their business. Unfortunately, you don’t always have the time or knowhow to keep up with new regulations. Fortunately, GMS can help you claim your time back and protect your business.

    As a premier PEO, GMS has the HR experts necessary to help you plan for the future and stay compliant with current laws. Our integrated HR system helps us take care of the administrative burden of payroll management, benefits administration, and other crucial human resources tasks for you so you have the time you need to focus on growing your business.

    Ready to stay ahead of new regulations and ease your administrative burden? Contact us today to talk to one of our experts about how we can strengthen your business.