Tag Archives: overtime

Federal Stop to New Overtime Rules

Do Not Disturb

Six months ago, Partner and Florida Bar Board Certified Labor and Employment Attorney Ellen Leibovitch wrote to tell you about new overtime regulations that were to go into effect on December 1 (see below). However, on November 22, 2016, a federal judge in Texas issued a nationwide preliminary injunction which effectively put a stop to these rules – for now.

The injunction will preserve the status quo until the court decides the rule’s validity, a decision which will come weeks or months down the road and will likely be appealed in any event.

For employers, this ruling means that the new rules will not go into effect on December 1 and that the old regulations will continue to apply until further notice. Additionally, measures the employers planned in contemplation of the new rules going into effect on December 1 can be put on hold for the time being. Employers can decide if measures already taken in anticipation of the sweeping rule changes – such as raising the salary of exempt employees to meet the expected $47,476/year (or $913/week) threshold – should remain in place, although reversal of these changes may be met with employee backlash.

A note of caution: employers should not assume that the overtime rules will never go into effect. This situation is eerily similar to the rule changes made in 2015 regarding the companionship exemption under the Fair Labor Standards Act. In that situation, the Department of Labor announced changes which would render the exemption inapplicable to third party (home care) providers, then the federal court issued an injunction to prevent the changes from going into effect, then an appeals court struck down the injunction; and the changes eventually went into effect a year after the original date. Given the current political climate, your guess is as good as mine as to whether this same scenario will occur with respect to the overtime rules. As always, I will continue to keep you apprised of any developments.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Corporate Law, Labor & Employment, labor and employment law, Uncategorized

New Overtime Regulations Impacting You

 

 

br_1016_92

Board Certified Labor and Employment Partner Ellen Leibovitch will be speaking on October 20, 2016 about important changes to the overtime regulations under the Fair Labor Standards Act (FLSA) that will go into effect on December 1, 2016.  Ellen, who recently appeared in the Boca Raton Observer, will discuss what employers need to know about the changes to the FLSA to protect their companies.

Please join the South Palm Beach County Bar Association’s Labor & Employment Committee on October 20, 2016 for breakfast and a panel discussion on the scope of the new rules and best practices for making sure your business is fully compliant as of day one.  To register online, click here.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

 

Leave a comment

Filed under Business Litigation, Florida Bar, Labor & Employment, labor and employment law, Uncategorized

Significant Changes to Overtime Regulations!

440872101_27a019a54c_o_d

Just this week, the Department of Labor (DOL) released its much-anticipated final changes to the overtime regulations under the Fair Labor Standards Act (FLSA). The new guidelines will go into effect on December 1, 2016, so now is the time for covered employers to start preparing.

What has changed?

Most significantly, the new rules change the salary requirements for exempt employees. Under the old rules, employees could be classified as exempt from overtime if they were earning a salary of $455/week (or $23,660/year) and if they performed exempt professional, managerial, executive or administrative duties. Under the new rules, however, employees must earn $913/week (or $47,476/year) – MORE THAN DOUBLE THE PRIOR SALARY LEVEL – to meet the salary component of the exemption. The salary threshold will automatically be updated every three years, so this is a moving target. Note that the final rule did not include a change to the duties test.

Also, the new rule raises the salary threshold level for the highly compensated employee (HCE) exemption from $100,000 to $134,004. To be exempt, a HCE must customarily and regularly perform any one or more of the exempt duties or responsibilities of a professional, managerial, executive or administrative employee and have the primary duty of performing office or non-manual work. Like the standard salary level, the highly compensated employee salary level will increase every three years, beginning Jan. 1, 2020.

What does this mean?

For exempt employees earning at least $913/week, nothing will change. However, employees who are now classified as exempt but who are earning less than $913/week will lose their exempt status as of December 1, 2016. Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, which also means that these employees will be required to record their hours worked. For exempt employees who never “punched a clock,” this may be demoralizing, although some may welcome the opportunity to earn overtime.

Note that employers will be able to count non-discretionary bonuses, incentive payments and commissions toward as much as 10% of the salary requirement. However, such payments must be made on at least a quarterly basis.

IMG_6281

What should you do?

Step 1: EVALUATION

  • Determine which employees will be impacted by these new rules, if anyone.
  • Assess the cost of reclassifying these employees as non-exempt or increasing their salaries in accordance with the new guidelines to keep these employees exempt.
  • For employees who will be reclassified as non-exempt, no additional costs will result:
    • if the newly non-exempt employees do not work overtime. Remember that even if you have a policy that requires all overtime hours be approved in advance, non-exempt employees who work over 40 hours a week must be paid at the time and one-half rate.
    • if the hourly rate paid to the newly non-exempt employees is reduced to take into account the need for these employees to work some overtime hours each week.
  • Remember to train all newly-exempt employees on your time-keeping procedures.

Employers impacted by these new rules may need to consider covering increased overtime costs by reducing benefits, but this will certainly result in a drop in employee morale.

Step 2: COMMUNICATION

  • Notify impacted employees that changes are the result of new rules imposed by the DOL rather than a company decision
  • Assure reclassified employees that the changes do reflect the employer’s opinion of their work or the employees’ value to the company

As always, you should contact legal counsel for any specific questions you may have about the applicability of the FLSA to your business, these new rules and how to best implement same.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Business Litigation, Corporate Law, Labor & Employment, labor and employment law, Uncategorized

Labor Law – Make Sure You are NOT DOA When the DOL Comes Knocking – Hire an Attorney

Knock Knock.  Who’s There?  The Department of Labor (the “DOL”).

The DOL is here to see you – now what?!

Imagine the scene: you are the owner of a business, not too big but not small either.  You have done pretty well for yourself and have grossed over $500,000 in revenues over the past few years.  You have a staff of employees, most of whom are hourly.  It’s a typical day, business as usual, when all of a sudden your receptionist announces that some people from the Department of Labor (DOL) are here to see you.  A myriad of thoughts and questions race through your mind: “Why is the DOL here?  I never got a letter or any notice that I had any problems!  Why didn’t they call and make an appointment?  Am I in trouble?”

One thought that will not likely go through your mind is this: “I need to call my attorney.”  The reason for that is simple: most business owners are used to solving problems by employing obvious and simple solutions and turning on their best “customer service” skills to nip problems in the bud.  Consequently, you walk into the lobby to meet your “guests,” show them into your office (or preferably to a conference room), sit them down, offer them a cup of coffee from your brand new Keurig machine, ask how you can help and wait for a response.  Little do you know that the DOL is already five steps ahead of you, and they are waiting to pounce.  These DOL investigators come armed with the tools of their trade, starting with a detailed, comprehensive, all-encompassing request for documents that would take hours, days or maybe even longer to compile.  They are not impressed with your graciousness; they want blood, and they want it now.

At this point, most business owners are still thinking they have it under control.  Just give the DOL what they want, and they will go away.  If only it were that simple.  This is just the tip of the iceberg, the first shot across the bow.  Your business is now in the DOL’s sight, and the DOL will not leave without their pound of flesh.  If you have not thought about bringing in legal counsel before, now is the time to make the call.

You may be wondering how the DOL chose your business.  Usually, the DOL will act on either an anonymous complaint, a follow-up from a prior investigation or a focused concentration on businesses similar to yours.  The anonymous complaint is usually made by a current or former disgruntled employee who believes that you are not paying what you owe him.  Chances are, if you are not paying one employee in accordance with the law, then you are probably making the same errors across the board.  The “follow-up” investigation comes after a prior investigation, just when you thought the DOL was through with you.  The DOL loves to pop in to make sure that you are following through with all the things required under the law – like keeping accurate time and payroll records, making sure hourly employees are getting paid time and one-half for overtime hours worked each week, not docking employees who work through lunch, etc. (you know, all the things for which you were cited and paid dearly for previously).  The third type of investigation commences with the DOL’s decision to focus on specific industries in the local geographic area based on a history of reported violations.  Some South Florida industries that have been on the DOL’s radar in the past include restaurants (especially those with tip pools), farms and nurseries, dry cleaners, home health agencies, etc.

So even if you did not think about calling your attorney before you offered the DOL investigators a seat in your conference room and a cup of coffee, do not fear.  A skilled labor & employment law attorney can help you communicate with, respond to and negotiate an exchange of documents (and more) with the DOL.  A labor & employment attorney speaks the DOL’s language and is invaluable in these type of situations.  Regardless whether you hire an attorney before you meet the DOL investigator, after you provide copies of all your business’ financial statements and tax returns or after the DOL has determined that you owe hundreds of thousands of dollars in back wages and penalties, a seasoned labor & employment attorney will be able to help.

For more information, please feel free to contact me.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2700 N. Military Trail, Suite 150

Boca Raton, Florida33431

Main: 561-361-6566
Direct: 561-948-2479

Fax: 561-361-6466

Email: eml@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft.Lauderdale • Boca Raton

1 Comment

Filed under Labor & Employment