{"id":4146,"date":"2016-11-02T09:28:08","date_gmt":"2016-11-02T13:28:08","guid":{"rendered":"https:\/\/gtm.com\/business\/?p=4146"},"modified":"2022-10-12T12:32:50","modified_gmt":"2022-10-12T16:32:50","slug":"upcoming-flsa-changes","status":"publish","type":"post","link":"https:\/\/gtm.com\/business\/upcoming-flsa-changes\/","title":{"rendered":"Upcoming FLSA Changes: Time to Update Your Policies"},"content":{"rendered":"

\"upcomingHave you reviewed your policies and practices in light of the upcoming FLSA overtime changes<\/a>?<\/p>\n

Reclassified employees may have to follow procedures and policies that didn\u2019t apply to them before\u2014or that you didn\u2019t have. Changing habits can be a challenge, but changing those of your formerly exempt employees with respect to hours worked and tracked is critical to preventing wage and hour violations.<\/p>\n

Newly non-exempt employees are likely used to \u201crunning the clock\u201d after hours. They may be in the habit of responding to work email, finishing up projects, taking client calls, or engaging in other work tasks during non-work hours. It\u2019s therefore advisable that your policies are clear about expectations and the organization\u2019s commitment to recording all time worked by nonexempt employees.<\/p>\n

Timekeeping\u00a0<\/b>
\nConsider that your previously exempt employees may not be familiar with your timekeeping procedures, such as tracking time to check emails and turning in recorded work time for each pay period. Review these procedures<\/a> with them, keeping in mind that non-exempt employees must be paid for all time they are \u201csuffered or permitted\u201d to work. This doesn\u2019t just mean time in the office, but all time, whether it\u2019s approved by the employer or not.<\/p>\n

Off-the-Clock Work <\/b>
\nAs mentioned above, all hours worked by a non-exempt employee must be recorded and compensated, even those performed outside of the employee\u2019s standard shift. Therefore, it\u2019s critical to have a policy in place that informs employees that all time worked must be tracked, that off-the-clock work is prohibited, and that employees may be disciplined for not following their scheduled shift. Please note that refusing to pay for unauthorized time worked\u2014whether it\u2019s regular or overtime\u2014is not permissible.<\/p>\n

Employees Using Their Personal Electronic Devices<\/b>
\nTime a non-exempt employee spends doing work from their smartphone, tablet, or personal computer is considered time worked, and employees may find this hard to resist if their phone is chirping at them from their pocket every time a new work email comes in. For this reason, you may want to prohibit a non-exempt employee from using their personal devices for work purposes<\/a> at all, or only allow such use upon authorization from the company. For instance, if you\u2019d like particular employees to check and respond to work email over the weekend, build that time into their weekly schedule so it doesn\u2019t lead to unexpected overtime.<\/p>\n

Meal and Rest Period <\/b>
\nMany states require meal and\/or break periods for non-exempt employees<\/a>. It\u2019s important to inform employees of these breaks, explain the procedures for clocking in and out, and remind them that no work should be performed during this time.<\/p>\n

This is an area where it will be particularly important for your managers to be willing to manage. Employees who previously worked through lunch at their desk and could put in their eight hours between 9 and 5 might not want to take an unpaid lunch period or break, thus extending their workday. State law, however, may be indifferent to their feelings. Sometimes these breaks can be waived, but sometimes they cannot. And waiving them sometimes requires special circumstances and agreements between employers and employees.<\/p>\n

Again, if work is performed, it must be compensated (and penalties may apply), so the policy should include instructions for notifying a manager or supervisor if a working meal period occurs.
\n
\nOvertime<\/b>
\nNow is the time to ensure that you\u2019re familiar with your state and local overtime laws<\/a>. Although most employers will only be subject to the federal requirement to pay time and one-half for hours worked over 40 in one workweek, Alaska, California, Colorado, and Nevada each have daily overtime provisions, and Massachusetts and Rhode Island require some employers to pay a premium for work on Sundays and certain holidays. Employees and managers need to be aware of the rules for compliance. And you should make sure that your own expectations for overtime work are written in your policy and communicated to your employees.<\/p>\n

Travel Time <\/b>
\nSince non-exempt employees must be paid for all time worked, you may need to consider travel time<\/a> for those customarily engaged in work travel. There are a few narrow exceptions when travel time isn\u2019t payable (e.g. when the employee is a passenger in a vehicle outside of regular work hours or during a standard morning\/evening commute), but it\u2019s good to assess your non-exempt employees\u2019 travel schedules to ensure proper pay.<\/p>\n

Payroll Changes<\/b>
\nIncentive pay: Per FLSA requirements, overtime must be calculated weekly based on the employee\u2019s \u201cregular rate of pay.\u201d Incentive pay (non-discretionary bonuses, commissions, or any other non-hourly pay) is included in the regular rate of pay calculation. For weeks in which a non-exempt employee earns both overtime and incentive pay\u2014whether provided at the time or retroactively\u2014you must calculate (or recalculate) the employee\u2019s regular rate of pay so that it includes both their base pay and incentive pay for the week. The new amount should then be used for overtime calculations.<\/p>\n

Workweek: Every company must have an established workweek that is not adjusted or altered to avoid overtime. This is the 168-hour period during which you will track each employee\u2019s hours to determine their pay and if they are owed overtime, e.g. Sunday at 12:00 am through Saturday at midnight. Each workweek is assessed individually for overtime calculations, and overtime must be paid for each workweek in which it is earned. Payroll, managers, and employees should know what the set workweek is.<\/p>\n

Next Steps<\/b>
\nIf these policies and practices aren\u2019t currently covered in your employee handbook<\/a>, we recommend adding them now, or distributing them separately as handbook amendments. Once distributed, employees should sign-off to acknowledge their acceptance and understanding of these important policies. If your policies and practices are already covered in your handbook, reemphasize them with the newly reclassified employees.<\/p>\n

Could The New Rules Be Thrown Out?<\/b>
\nWhile attempts have been made to challenge or delay the new rule, we have seen no indications that changes are likely before the effective date (if at all). Therefore, employers should plan to be in compliance when the new rules go into effect on December 1st.<\/p>\n

Find more information in our FLSA Resource Center<\/a>, or contact us<\/a> at (518) 373-4111 to learn how we can help manage this transition.<\/p>\n","protected":false},"excerpt":{"rendered":"

In light of the upcoming FLSA overtime changes, many formerly exempt employees have been reclassified as non-exempt. This means not only must they start earning overtime, they may have to start following policies they may not have been subject to before, such as prohibited off-the-clock work.<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[232],"tags":[5,34,6,54],"post_folder":[],"class_list":["post-4146","post","type-post","status-publish","format-standard","hentry","category-gtm-biz-blog-isolved","tag-department-of-labor","tag-flsa","tag-new-york-employers","tag-overtime"],"_links":{"self":[{"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/posts\/4146","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/comments?post=4146"}],"version-history":[{"count":4,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/posts\/4146\/revisions"}],"predecessor-version":[{"id":12931,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/posts\/4146\/revisions\/12931"}],"wp:attachment":[{"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/media?parent=4146"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/categories?post=4146"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/tags?post=4146"},{"taxonomy":"post_folder","embeddable":true,"href":"https:\/\/gtm.com\/business\/wp-json\/wp\/v2\/post_folder?post=4146"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}