FLSA Proposed Revisions

Looming revisions to the Fair Labor Standards Act (“FLSA”) are likely to make millions of previously exempt American workers eligible for overtime pay and other protections provided by the FLSA. While there has been no official proposal released as of yet, an executive action issued in 2014 is likely to lead to revisions of certain FLSA criteria and standards which have remained mostly stagnant since as far back as 2004. Specifically, analysts and policy makers expect significant changes to the current salary threshold which determines whether employees are exempt from the FLSA as “white-collar employees”. Currently, the FLSA provides that the only salaried employees who are automatically qualified for overtime are those who receive less than $455 per week, or $23,660 per year. However, due to inflation, the amount of salaried employees who fall under this threshold is now only around 11%. It is expected that the new FLSA revisions will greatly increase this threshold, and in turn, greatly increase the amount of salaried employees who are automatically entitled to receive the time-and-a-half overtime rate for all hours worked over 40 per workweek.

Additional expected revisions to the exemption policy include more stringent duties tests. Employees may be classified as exempt from certain benefits of the FLSA based on the duties that they are required to perform at work. Specifically, the test looks to see if an employee’s “primary duty” falls under various, well-defined categories of exemptions, including administrative, executive, and professional exemptions. An increase in the stringency of these duties tests will in turn lead to less employees falling under these exemptions, and more employees being entitled to overtime pay and other benefits under the FLSA. Further, there is speculation that the current definition of “primary duty”, which is considered to be an activity which consumes over 50% of an employee’s work time, will change from a factor for consideration to a rigid requirement for exemption.

The employment lawyers at Fitapelli & Schaffer, LLP are strongly committed to protecting the rights of hard working employees. We eagerly await and look forward to these proposed changes to the FLSA, and see any provision which increases the nationwide availability of FLSA protection as a boon to the working class. Therefore, we plan to closely follow these changes and provide up-to-date information on them through our employment blog. If you have any questions about your exemption status, or about how these changes may affect your rights as an employee, please do not hesitate to contact us at (212) 300-0375 or visit our website at www.fslawfirm.com.