Guest Author Heather G. Ptasznik: FLSA white collar exemption changes approved … Are you ready?

downloadOn May 19, 2016, the Department of Labor (“DOL”) issued its final rule regarding the Fair Labor Standards Act (“FLSA”). This ruling will have nationwide sweeping implications for most private and public employers as it pertains to who is exempt from the overtime pay requirements under federal law.

The DOL invited interested parties to submit written comments to the proposed rule changes through September 4, 2015. The DOL has now adopted its final rules, which become effective December 1, 2016, which are as follows:

  • The salary basis test for an employee to be exempt from the FLSA increased from $455/week or $23,660 annually, to $913/week or $47,476 annually. However, in order to prevent the salary level requirements from again becoming outdated and ineffective, the DOL is establishing mechanisms for automatically updating the salary and compensation levels every three (3) years to maintain them at the levels set in the new rule. Thus, employers will need to plan for these future changes as they set compensation levels.
  • Highly compensated employees who earn more than $134,004 annually and who customarily engage and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee as defined under the FLSA, are exempt from the overtime requirements without satisfying the full duties test.
  • Employers will be able to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent (10%) of the standard salary level, provided these payments are made on a quarterly or more frequent basis. Although there were no changes to the description of duties and responsibilities evaluated in determining whether an employee is exempt, employers will need to review employee compensation plans to ensure that their once-classified exempt employees either remain so (by increasing salaries) or are moved into a non-exempt classification; thus making them eligible for overtime pay. Along with the change in employee compensation, employers should review current job descriptions for those employees currently classified as exempt and make appropriate modifications, if necessary.

The DOL has stated that these changes will result in the reclassification of over 4.2 million employees to non-exempt status which may result in increased overtime requiring employers to re-evaluate staffing levels and compensation plans to address overtime costs. Failure to properly classify employees can lead to fines and penalties under the FLSA as well as back pay (up to 2 years and 3 years if the misclassification was “willful”) to those employees who were misclassified and the employee’s attorneys fees.


In the course of providing legal advice and support to Kotz Sangster’s clients’ human resources department, Heather G. Ptasznik believes that putting sound, preventive measures in place can assist in reducing potential liabilities. Heather works closely with human resources personnel to ensure the firm’s clients have effective, clear and comprehensive policies and procedures in place to best protect themselves. She believes that being proactive helps clients avoid litigation and statutory violations before incurring devastating fines, costs and being distracted from core business concerns.

Kotz Sangster’s employment law attorneys are available to help you better understand the proposed rules and learn how you can implement best practices in order to remain compliant, avoid wage and hour mistakes and manage your labor costs. Learn more at