FLSA Changes 2020

On September 24, 2019 the U.S. Department of Labor announced a final rule updating the earnsing threshold necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act's minimum wage and overtime provisions. The new salary threshold is $684 per week ($35,568 annually). The final rule will be effective January 1, 2020.

FAQs

Q: What is the Fair Labor Standards Act (FLSA)?
A: The FLSA is the federal law that establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting most private and public employers. The U.S. Department of Labor’s Wage and Hour Division enforces the FLSA.

Q: What is the recent change in the FLSA that may affect my employment status at ETSU?
A: The U.S. Department of Labor has updated the FLSA’s “Overtime Rule” to strengthen overtime protections for employees. The Overtime Rule updates the salary level required for executive, administrative and professional (white collar) employees to remain exempt from the FLSA. To remain exempt an employee must meet all the same duties tests but must now earn a minimum of $35,568 per year. Under the old “Overtime Rule,” an employee was exempt from overtime provisions if they met all of the duties tests and were paid a minimum of $23,660 per year. Exempt employees are not eligible for overtime pay.

Q: I have heard that there are certain exceptions to the $35,568 per year salary requirement. Is that true?
A: Yes, the Department of Labor has identified two exemption statuses specifically for Higher Education Institutions. These exemptions include a Teacher exemption and an Academic Administrator exemption. These exemptions have definitive requirements that have been reviewed by our senior ETSU administrators to properly classify all affected positions.
Employees impacted by these exemptions will be notified after a thorough analysis has been completed. After that analysis, you may be designated to remain an exempt employee even if you don’t earn $35,568 because your job involves duties that meet the Teacher or Academic Administrator exemptions.

Q: I work part-time, does that affect the $35,568 per year salary requirement?
A: No, the FLSA does not make any provision for part-time employee salaries. The salary requirement for MODFY employees is prorated based upon the number of months the employee works.

Q: When do the new FLSA Regulations take effect?
A: January 1, 2020

Q: If I am reclassified from exempt to non-exempt status how do I complete my timesheet?
A: All non-exempt employees must complete their timesheets by recording actual hours worked in addition to recording leave taken.

Q: How can a non-exempt employee track the hours that they work while traveling for work?
A: The Wage and Hour Division has a free App for download at www.dol.gov/whd. The app helps employees track the hours that they work using a Smartphone. For employees without a Smartphone, the Wage and Hour Division has a printable work hours calendar to track rate of pay, work start and stop times, and arrival and departure times. Employees who use an Android device will find free Apps available for download on Google.

Q: What is considered work time while a non-exempt employee is traveling?
A: Determining work time while traveling can be difficult. The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved. Please see the Travel Time Guidelines for Supervisors and the Travel Time Chart on this website for assistance.

Q: If I am reclassified from exempt to non-exempt status on January 1, 2020, am I a considered a clerical/support staff employee?
A: No, you will be classified as an administrative/professional non-exempt employee.

Q: If I am reclassified from exempt to non-exempt on January 1, 2020, will I have the same job description?
A: Yes, employees reclassified on January 1, 2020 to a non-exempt status will continue to perform their administrative/professional duties as currently assigned. However, these employees will become eligible for overtime payments.

Q: If I am reclassified from exempt to non-exempt, how will it affect my benefits and leave accrual?
A: We are pleased to announce that current employees who are reclassified to “administrative/professional non-exempt” will maintain at their current leave accrual rates (2 days annual leave and 1 day sick leave per month), as long as they remain in the same position, and will transfer their current leave balances as of January 1 to their new classification. All affected employees will remain in their current retirement system.

Q: Can I still teach Adjunct classes if I am a non-exempt employee?
A: Please review the new policy, PPP-83 Non-Exempt Employees Who Also Teach as Adjunct Faculty, that has been approved and is posted on the Policies and Procedures webpage.

Q: Will I be paid for working “on-call” during my off-duty hours if I am a non-exempt employee?
A: Non-exempt employees who are scheduled to be “on-call” and provide services during off-duty hours will be paid overtime pay or compensatory time for the actual hours worked. Whether the hours spent on-call is actually hours worked must be decided on a case-by-case basis. (Please see On-Call Time Guidelines for Supervisors for additional guidance.)

Q: Will I be paid if I am called back to work during an emergency if I am a non-exempt employee?
A: Yes. Please review the new section of PPP-05 Pay Procedures that has been approved an is posted on the Policies and Procedures webpage.

Q: How will vacant administrative/professional positions be advertised?
A: Effective immediately, newly advertised administrative/professional positions will clearly state that the position is exempt, non-exempt, or dependent upon salary.

Q: As a non-exempt employee do I need approval to work overtime?
A: Yes, you must have prior approval to work overtime. See PPP-05.

Q: My department can’t afford to pay me overtime; can I volunteer my time?
A: No, non-exempt employees cannot volunteer to perform their regular job duties.

Q: If a non-exempt employee chooses to eat their lunch at their desk and ends up answering the telephone a few times, do they need to be paid?
A: Yes, if the non-exempt employee is allowed to work, whether or not they are eating their lunch, it is paid work time. In order to be considered an unpaid break, the employee needs to leave the work area and /or perform absolutely no work for more than 20 minutes.

Q: May a non-exempt employee waive their rights to overtime compensation?
A: No, all non-exempt employees are compensated for all hours actually worked.

Q: Can the supervisor make a non-exempt employee leave early on Friday so the employee’s total hours of work will not exceed 37.5 hours?
A: Yes, this is one method to effectively manage work time and the personnel budget.

Q: I am a non-exempt employee and I receive emails, telephone calls and text messages from students, my supervisor and other office staff after- hours. If I respond to work-related e-mails, telephone calls and/or text messages after-hours do I get paid for that time?
A: Yes, non-exempt employees who respond to work-related emails, telephone calls and text messages after-hours must be paid for the time they worked.

Q: I am a supervisor and I expect my non-exempt employees to handle work-related e-mails, telephone calls and text messages after regular business hours. Do these employees need to be paid for the time they work using their cell phones and computers after-hours?
A: Yes, non-exempt employees who respond to work-related emails, telephone calls and text messages after-hours must be paid for the time they work. Supervisors need to monitor their need to communicate with non-exempt employees after-hours. Discuss with your employees what types of issues are priority and require their immediate response, and what issues can wait until regular work hours.

Q: If I change positions in a lateral move will I be grandfathered in with my current leave accrual rate?
A: The grandfathering of leave accruals only occurs as long as the employee remains in their current position.

Q: If my job is audited will I lose my current leave accrual rate?
A: No, you would not lose the accrual rate if the position is audited.

Q: What is the threshold for academic administrators?
A: The threshold for an academic administrator is the entry salary for a teacher at the institution. ETSU has established that amount as $25,000.

Q: If I am taking a class, how do I record my time in class on my timesheet?
A: Time spent in class (that is not a workshop or conference directly related to work) should be recorded as leave time.

Q: How is my hourly rate calculated?
A: You can calculate your hourly rate by dividing your annual salary by 1,950 hours.

Q: If I earn comp time at time and a half, do I get paid at out at time and a half?
A: When comp time is recorded it is automatically converted to the correct amount of hours. When comp time is paid out, it is paid at the current hourly rate.

Q: How does comp time affect longevity pay?
A: Please see PPP-15.

Q: If I get an across the board increase that puts me over the exempt employee threshold, will my position be reclassified to exempt?
A: At this time, there are no plans to reclassify employees who reach the salary threshold through across the board increases.

Q: How does this change affect 12 month faculty and faculty that are split in faculty and administrative duties?
A: Faculty are exempt from the FLSA.

Q: Do I record my time if I check email after hours and weekends?
A: Yes, any time spent working should be recorded.

Q: If one of my employees is teaching as an adjunct, do I have to change their regular working hours?
A: No. Please see PPP-83

Q: Can we request a position be changed to exempt based on the cost of overtime?
A: HR will work with departments to decide if a change in status is appropriate.

Q: If I work in a clinic and occasionally have to work through lunch, can I just leave early at the end of the day?
A: No. Lunch should be taken during a normal meal period. See PPP-05

Q: Are non-exempt employees required to take 15 minute breaks?
A: Most employees have the opportunity to take breaks as needed. A 15 minute break is only necessary when there is no opportunity for rest during the shift.

Q: Is overtime pay monthly?
A: When paid overtime is chosen, it is paid out on the next month’s paycheck.

Q: If a supervisor asks me to come in on the weekend but cannot pay me overtime, can I still come in (volunteer)?
A: No, employees cannot volunteer for their own position.

Q: If I work on Saturday, can I take a day off the next week to avoid working overtime?
A: The work week is Sunday at 12:00AM to Saturday at 11:59PM. If time is worked on Saturday it must be recorded on the timesheet. Compensatory time can be taken the following week.

Q: What if the person doesn’t have comp time on their current timesheet, but they earn it during the pay period, can they use it in the same pay period?
A: Yes, an employee can bank compensatory time and take compensatory time earned in the same pay period. They do not have to have an existing bank from the previous pay period. However, the employee cannot take compensatory time off before it is earned.

Q: Can you take paid overtime and annual/sick leave in the same week?
A: Yes, you can have overtime hours and annual/sick leave hours in the same week. You should not have overtime worked and annual/sick leave in the same day.

Q: Can you require employees to take time off during the same week they earn it?
A: Yes, the supervisor can require an employee to take compensatory time in the same week it is earned.

Q: Can employees work together to take their time off so not everyone is off at the same time?
A: Yes, employees are encouraged to work with each other and their supervisor to ensure that services continue while still allowing employees to use their earned compensatory time.

Q: Do employees have to earn comp time before they can take it? What if they earn it on a Friday or Saturday?
A: Yes, employees have to earn compensatory time before it is taken. If time is earned on a Friday or Saturday, then the time would be recorded on the timesheet as compensatory time banked, and would be available for the employee to use the following week.

Q: If you take annual/sick leave during the week, does that affect overtime?
A: Yes, taking annual and/or sick leave during week affects overtime. Accrued time worked shall include hours actually worked and holiday hours for the purposes of overtime calculation. Any hours other than the holiday hours and hours worked are excluded from overtime compensation.

Q: If I’ve earned enough comp time to take every Friday off for a month, would I still have the same paycheck?
A: Yes, the paycheck would be the same.

Q: How do you know who is exempt?
A: Timekeepers will know who is exempt when they enter time into the TRS system. Exempt employees are not eligible for compensatory or overtime compensation.