DOL ISSUES LONG-AWAITED REGULATIONS ON THE WHITE COLLAR EXEMPTIONS

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1 April 21, 2004 DOL ISSUES LONG-AWAITED REGULATIONS ON THE WHITE COLLAR EXEMPTIONS Yesterday, the U.S. Department of Labor released its final regulations implementing the white collar exemptions under the Fair Labor Standards Act ( FLSA ). If not struck down by Congress or the courts, the new regulations will induce most employers to re-examine their exempt classifications to determine which employees must be paid minimum wage and overtime. In response to perceived public and congressional opposition to the regulations, the final version does not alter the exempt classifications as dramatically as originally proposed in March of Nonetheless, the final regulations mark the first substantive change in the overtime regulations since the 1950s and will result in the re-classification of millions of workers. The new rules will be effective 120 days after they are published in the Federal Register (which should happen later this week or early next week). Some of the most dramatic changes from the March 2003 proposed regulations include: increasing the minimum salary requirements for exempt status to $455 per week or $23,660 annually (versus $425 per week/$22,100 annually under the proposed regulations); increasing the new special streamlined rule for highly compensated employees to $100,000 or more annually (versus $65,000 under the proposed regulations); eliminating the sole charge provision of the executive exemption; and rejecting the proposed position of responsibility concept for the administrative exemption and instead retaining the old independent judgment and discretion requirement. BACKGROUND The FLSA generally requires that all employees who work 40 or more hours in a workweek must be paid at a rate of one and one-half times their regular rate of pay. To fulfill the requirements of the FLSA, an employer must first determine if an employee is subject to its provisions, or is exempt under one of its many exemptions. The primary exemptions include executive or managerial, administrative, professional, outside sales, and computer-related professionals. These This Client News Alert is published for the clients and friends of Bryan Cave LLP. Information contained herein is not to be considered as legal advice. This Client News Alert may be construed as an advertisement or solicitation Bryan Cave LLP. All Rights Reserved.

2 exemptions are commonly referred to as the white-collar exemptions. Although FLSA compliance often seems fairly straightforward, the old regulations are fraught with potential pitfalls for employers who take compliance for granted. Unfortunately, often simple mistakes or misinterpretation of the regulations resulted in substantial monetary damages. In 2001, collective action lawsuits surpassed class action job discrimination suits for the first time. After decades of extensive public commentary on the need for the modernization of the overtime rules, the Department of Labor issued proposed new regulations in March 2003 to significantly change the test for determining which workers are eligible to be exempt from the overtime provisions of the FLSA. During the 90-day comment period, the DOL received over 75,000 public comments, which it characterized as revealing significant misunderstandings regarding the scope of the white collar exemption in addition to providing helpful suggestions to improve the regulations. The final regulations address several areas of perceived confusion and weaken the scope of the originally proposed exemptions. The final regulations specifically reinforce the notion that blue collar workers are not exempt and clarify that police officers, firefighters, paramedics, and rescue workers do not qualify under the white collar exemptions. Addressing concerns voiced in public comments, new provisions of the regulations address specific occupations. For example, the regulations state that while registered nurses who are paid on a salaried basis will generally meet the duties requirements of the learned profession exemption, licensed practical nurses and other similar health care employees do not, and paralegals will be exempt only in limited circumstances. THE NEW SALARY TEST Minimum Salary Requirements Recognizing that the current minimum salary requirements make no sense today, the DOL dramatically increased the minimum salary requirement for exempt status. Under the new regulations, any employee making $455 per week, or $23,660 annually (as opposed to the $22,100 annual salary level in the March 2003 proposal), would automatically meet the minimum salary requirements necessary to be exempt under the white collar exemptions. In essence, the new regulations do away with the long test/short test distinction. The DOL estimates that the increased salary level will strengthen overtime protection for more than 6.7 million salaried workers who earn between $8,060 and $23,660 annually. New Rules for Highly Compensated Employees The new regulations include a special, streamlined rule for employees paid $100,000 or more annually (up from $65,000 in the March 2003 proposal). Highly compensated employees would be automatically exempt from the overtime requirements of the Act if they are performing nonmanual work and have at least one identifiable function described in the duties test outlined below. The DOL believes that this final highly compensated test may result in 107,000 employees who earn $100,000 or more annually losing overtime protection. 2

3 Changes to the Salary Basis Test The final regulations retain the requirement that exempt white collar employees must be paid on a salary basis. This means the employee must be paid a predetermined amount on a regular basis, but not less than weekly. The predetermined amount cannot be subject to reduction for variations in the quantity or quality of the work performed. The new regulations, however, permit employers to make deductions from pay for full day disciplinary suspensions. For an example, an employer would be permitted to suspend an employee without pay for sexual harassment or workplace violence. (The current rules only allow disciplinary deductions for infractions of safety rules of major significance, or for unpaid suspensions for one or more full workweeks.) The new regulations also broaden circumstances under which the window of correction can be used to remedy improper deductions. Under the new rules, the exemption will be lost only if there is a pattern and practice of improper deductions. Even better, under the new rules, where a pattern or practice is found, the exemption will be denied only for employees in the same job classification and working under the manager responsible for the impermissible docking decision or practice. Best yet, the proposed regulations create a new safe harbor provision permitting employers to avoid the loss of the exemption if the employer: (1) has a clearly communicated policy prohibiting improper pay deductions; (2) reimburses employees for any improper deductions from pay; and (3) makes a good faith commitment to comply in the future. This safe harbor protection will insure exemptions are not lost unless the employer s policy is willfully violated by making improper deductions after receiving employee complaints. THE NEW DUTIES TESTS The Executive Exemption Qualifying under the executive exemption is more difficult under the new regulations. Under the new rules, employees will qualify for the executive or managerial exemption if, in addition to earning more than $455 per week, they: Have a primary duty of managing the enterprise or a recognized department or subdivision; Regularly and customarily direct the work with two or more employees; and Have the authority to hire and fire other employees or their recommendations as to hiring, firing, promotion or other change of status are given particular weight. The final regulations delete the sole charge provision wherein an employee in sole charge of an independent establishment, or physically separated branch establishment, may qualify as an exempt executive. Administrative Exemptions The DOL abandoned the proposed regulation for the administrative exemption that would have created the new position of responsibility concept, and instead chose to maintain the current 3

4 short test. The standard duties test for administrative employees requires, in addition to earning $455 per week, that the employee: Have a primary duty of performing office or nonmanual work related to the management or general business operations of the employer or the employer s customer; Customarily and regularly exercise discretion and independent judgment. The new regulations do, however, provide additional guidance in applying the administrative exemption duties test and discuss its applicability to various occupations. The regulations state that the following occupations generally meet the duties test under the exemption: insurance claims adjusters, employees in the financial services industry, team leaders assigned to major projects, executive or administrative assistants to business owners or senior executives of a large business, human resource managers, and purchasing managers with authority to bind employers on significant purchases. Professional Exemptions Similar to changes made to the other white-collar exemptions, the DOL does away with the long test/short test distinction and percentage limitations for nonexempt work for the professional exemption. For example, the new standard test for the learned professional exemption requires that such employees: Have a primary duty of performing office or nonmanual work requiring advance knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; Such advanced knowledge or learning may be acquired by an equivalent combination of intellectual instruction and work experience. The new learned professional duties test eliminates the requirement that the employee exercise consistent discretion and independent judgment. The new standard test for the artistic professional exemption has also been streamlined. Outside Sales Exemption Under the old regulations, outside sales employees may not have spend 20% or more of their time (based on a 40-hour workweek) on duties unrelated to outside sales or solicitations. Similar to the changes with the other white-collar exemptions, the 20% nonexempt work limitations is eliminated. Instead, the exemption will require that the employee: Have a primary duty of making sales, or obtaining orders or contracts for services, or use of the facilities; and Be customarily and regularly engaged away from employer s place of business while performing such duties. 4

5 WHAT IS THE FUTURE OF THE NEW REGULATIONS? Rejecting an amnesty proposal received during public comments, the DOL states that the 120-day time period will provide employers with ample time to make any necessary changes to ensure compliance. During this period, the regulations may also be challenged in the courts under the Administrative Procedure Act or overruled by Congress under the Congressional Review Act. Additionally, Senator Tom Harkin (D-Iowa) has stated that he will continue to push for legislation that would prevent the regulations from denying overtime eligibility to any employee who is currently protected. We will keep you apprised of any major developments and will be offering a seminar in the near future that more comprehensively addresses the effect of the new regulations. If you or your organization would like more information on compliance with the new regulations or assistance in performing audits based on the new classifications, please contact Tracy Miller at (602) , Teresa Forst at (602) , Julie Patterson at (949) , Pamela Calvet at (310) , or any of the Bryan Cave attorneys listed on the following page. For further information on these topics or other Labor and Employment issues, please contact us through the direct link to our Web site below. Bryan Cave LLP makes available the information and materials on its Web site for information purposes only. The information is general in nature and does not constitute legal advice. Further, the use of the site, and the sending or receipt of information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this Web site will not be considered as privileged or confidential. Bryan Cave Labor & Employment Practice 5

6 Bryan Cave LLP Labor and Employment News Alert Page 6 For More Information Please consult any member of the Bryan Cave LLP Labor and Employment Client Service Group listed below for answers to your specific legal questions. Phoenix Office 1 Renaissance Square, Phoenix, AZ Stephen J. Beaver... (602) Richard M. J. Bushong... (602) Joseph T. Clees (Group Co-Leader)... (602) Eric Dowell... (602) Teresa D. Forst... (602) Laura R. Garger... (602) Michael D. Guinan... (602) Caroline K. Larsen... (602) Kira D. Lodge... (602) Christopher M. Mason... (602) Tracy A. Miller... (602) Leah S. Smith... (602) James T. Tucker... (602) Pavneet S. Uppal... (602) New York Office 1290 Avenue of the Americas, New York, NY Vincent Alfieri (Group Co-Leader)... (212) Christine Cesare... (212) Jennifer R. Danzo... (212) Matthew S. Dunn... (212) Kyle P. Flaherty... (212) Dennis Fleischmann... (212) James F. Gill... (212) Elizabeth J. Goldberg... (212) Hope Sarah Goldstein... (212) William J. Hibsher... (212) David P. Kasakove... (212) Mark D. Koestler... (212) Robert R. Reed... (212) Theodore Ruthizer... (212) Norman K. Samnick... (212) Victoria A. Sheehy... (212) Steven M. Stimell... (212) Dermot J. Sullivan... (212) Herbert Teitelbaum... (212) Jay P. Warren... (212) Paul T. Williams... (212) Chicago Office 161 North Clark, Chicago, IL Rodney Perry... (312) James M. Staulcup, Jr.... (312) London Office 33 Cannon Street, London, England EC4M 5TE Sarah Linton... (011) Edward W. Wanambwa... (011) St. Louis Office One Metropolitan Square, St. Louis, MO Hollye S. Atwood... (314) Ellen E. Bonacorsi... (314) Michael P. Burke... (314) Elizabeth C. Carver... (314) Dennis C. Donnelly... (314) Heidi K. Durr... (314) Veronica A. Gioia... (314) Zachary A. Hummel... (314) Jerry M. Hunter... (314) Charles B. Jellinek... (314) Charles A. Lawrence, Jr.... (314) Ned O. Lemkemeier... (314) Gregg M. Lemley... (314) James P. Mannion... (314) Lisa Demet Martin... (314) Timothy C. Mooney... (314) Daniel M. O Keefe... (314) Sara E. O Keefe... (314) Laura M. Rehm... (314) Kansas City Office 3500 One Kansas City Place, Kansas City, MO Beth Romans Bower... (816) Heather S. Esau Zerger... (816) Robert J. Hoffman... (816) Elaine D. Koch... (816) Lynn S. McCreary... (816) Sherry Hall Messner... (816) Jeremiah J. Morgan... (816) Meredith J. Rund... (816) Stacy O. Schorgl... (816) Mikah K. Story... (816) Santa Monica Office 120 Broadway, Suite 300, Santa Monica, CA Howard O. Boltz... (310) Pamela C. Calvet... (310) Leslie H. Helmer... (310) Jamie L. Johnson... (310) Barbara A. Krieg... (310) Agatha M. Melamed... (310) Sydney E. Roberts... (310) David H. Raizman... (310) Harry R. Stang... (310) Karen L. Stephenson... (310) Lynn K. Thompson... (310) Irvine Office 2020 Main Street, Suite 600, Irvine, CA Julie E. Patterson... (949)

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