The Wage and Hour Division, Department of Labor, published the Final Rule Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees on May 23, 2016 in the Federal Register. The Final Rule is effective December 1, 2016.

The DOL Summary notes:

“The Fair Labor Standards Act (FLSA or Act) guarantees a minimum wage for all hours worked during the workweek and overtime premium pay of not less than one and one-half times the employee’s regular rate of pay for hours worked over 40 in a workweek. While these protections extend to most workers, the FLSA does provide a number of exemptions.

In this Final Rule, the Department of Labor (Department) revises final regulations under the FLSA implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees. These exemptions are frequently referred to as the ‘‘EAP’’ or ‘‘white collar’’ exemptions. To be considered exempt under part 541, employees must meet certain minimum requirements related to their primary job duties and, in most instances, must be paid on a salary basis at not less than the minimum amounts specified in the regulations.

In this Final Rule the Department updates the standard salary level and total annual compensation requirements to more effectively distinguish between overtime-eligible white collar employees and those who may be exempt, thereby making the exemption easier for employers and employees to understand and ensuring that the FLSA’s intended overtime protections are fully implemented.

The Department sets the standard salary level for exempt EAP employees at the 40th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region. (Lawrence Associates note: The salary level was last updated in 2004 to $23,660 per year for a full-year worker.) That amount has been set to $47,476.

The Department also permits employers to satisfy up to 10 percent of the standard salary requirement with nondiscretionary bonuses, incentive payments, and commissions, provided these forms of compensation are paid at least quarterly.

The Department sets the total annual compensation requirement for an exempt Highly Compensated Employee (HCE) equal to the annualized weekly earnings of the 90th percentile of full-time salaried workers nationally. (Lawrence Associates note: The salary level was last updated in 2004 to $100,000 per year for a full-year worker.) That amount has been set to $134,004.

The Department also adds a provision to the regulations that automatically updates the standard salary level and HCE compensation requirements every three years by maintaining the earnings percentiles set in this Final Rule to prevent these thresholds from becoming outdated. Finally, the Department has not made any changes in this Final Rule to the duties tests for the EAP exemption.”

WorldatWork www.worldatwork.org and Society for Human Resources Management www.shrm.org offer a great deal of information on options for implementing this Rule, including discussions of strategy and tool kits. As always, we recommend working with your employment attorney in reviewing and implementing changes.