[Federal Register Volume 81, Number 99 (Monday, May 23, 2016)]
[Rules and Regulations]
[Pages 32391-32552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11754]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 541
RIN 1235-AA11
Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees
AGENCY: Wage and Hour Division, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Fair Labor Standards Act (FLSA or Act) guarantees a
minimum wage for all hours worked during the workweek and overtime
premium pay of not less than one and one-half times the employee's
regular rate of pay for hours worked over 40 in a workweek. While these
protections extend to most workers, the FLSA does provide a number of
exemptions. In this Final Rule, the Department of Labor (Department)
revises final regulations under the FLSA implementing the exemption
from minimum wage and overtime pay for executive, administrative,
professional, outside sales, and computer employees. These exemptions
are frequently referred to as the ``EAP'' or ``white collar''
exemptions. To be considered exempt under part 541, employees must meet
certain minimum requirements related to their primary job duties and,
in most instances, must be paid on a salary basis at not less than the
minimum amounts specified in the regulations.
In this Final Rule the Department updates the standard salary level
and total annual compensation requirements to more effectively
distinguish between overtime-eligible white collar employees and those
who may be exempt, thereby making the exemption easier for employers
and employees to understand and ensuring that the FLSA's intended
overtime protections are fully implemented. The Department sets the
standard salary level for exempt EAP employees at the 40th percentile
of weekly earnings of full-time salaried workers in the lowest-wage
Census Region. The Department also permits employers to satisfy up to
10 percent of the standard salary requirement with nondiscretionary
bonuses, incentive payments, and commissions, provided these forms of
compensation are paid at least quarterly. The Department sets the total
annual compensation requirement for an exempt Highly Compensated
Employee (HCE) equal to the annualized weekly earnings of the 90th
percentile of full-time salaried workers nationally. The Department
also adds a provision to the regulations that automatically updates the
standard salary level and HCE compensation requirements every three
years by maintaining the earnings percentiles set in this Final Rule to
prevent these thresholds from becoming outdated. Finally, the
Department has not made any changes in this Final Rule to the duties
tests for the EAP exemption.
DATES: This Final Rule is effective on December 1, 2016.
FOR FURTHER INFORMATION CONTACT: Director, Division of Regulations,
Legislation and Interpretation, U.S. Department of Labor, Wage and Hour
Division, Room S-3502, 200 Constitution Avenue NW., Washington, DC
20210; telephone: (202) 693-0406 (this is not a toll-free number).
Copies of this Final Rule may be obtained in alternative formats (Large
Print, Braille, Audio Tape or Disc), upon request, by calling (202)
693-0675 (this is not a toll-free number). TTY/TDD callers may dial
toll-free 1-877-889-5627 to obtain information or request materials in
alternative formats.
Questions of interpretation and/or enforcement of the agency's
regulations may be directed to the nearest Wage and Hour Division (WHD)
district office. Locate the nearest office by calling the WHD's toll-
free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5
p.m. in your local time zone, or log onto WHD's Web site at http://www.dol.gov/whd/america2.htm for a nationwide listing of WHD district
and area offices.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. What the FLSA Provides
B. Legislative History
C. Regulatory History
D. Overview of Existing Regulatory Requirements
E. Presidential Memorandum
F. The Department's Proposal
G. Effective Date
III. Need for Rulemaking
IV. Final Regulatory Revisions
A. Standard Salary Level
B. Special Salary Tests
C. Inclusion of Nondiscretionary Bonuses, Incentive Payments,
and Commissions in the Salary Level Requirement
D. Highly Compensated Employees
E. Automatic Updates
F. Duties Requirements for Exemption
V. Paperwork Reduction Act
VI. Analysis Conducted in Accordance With Executive Order 12866,
Regulatory Planning and Review, and Executive Order 13563, Improving
Regulation and Regulatory Review
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VII. Final Regulatory Flexibility Analysis
VIII. Unfunded Mandates Reform Act Analysis
VIIIX. Executive Order 13132, Federalism
IX. Executive Order 13175, Indian Tribal Governments
XI. Effects on Families
XII. Executive Order 13045, Protection of Children
XIII. Environmental Impact Assessment
XIV. Executive Order 13211, Energy Supply
XV. Executive Order 12630, Constitutionally Protected Property
Rights
XVI. Executive Order 12988, Civil Justice Reform AnalysisFinal
Amendments to Regulatory Text
I. Executive Summary
The Fair Labor Standards Act (FLSA or Act) guarantees a minimum
wage for all hours worked and limits to 40 hours per week the number of
hours an employee can work without additional compensation. Section
13(a)(1) of the FLSA, which was included in the original Act in 1938,
exempts from these minimum wage and overtime pay protections ``any
employee employed in a bona fide executive, administrative, or
professional capacity.'' The exemption is premised on the belief that
these kinds of workers typically earn salaries well above the minimum
wage and enjoy other privileges, including above-average fringe
benefits, greater job security, and better opportunities for
advancement, setting them apart from workers entitled to overtime pay.
The statute delegates to the Secretary of Labor the authority to define
and delimit the terms of the exemption.
The Department has undertaken this rulemaking in order to revise
the regulations so that they effectively distinguish between overtime-
eligible white collar employees who Congress intended to be protected
by the FLSA's minimum wage and overtime provisions and bona fide EAP
employees whom it intended to exempt. When the definition becomes
outdated, employees who Congress intended to protect receive neither
the higher salaries and above-average benefits expected for EAP
employees nor do they receive overtime pay, and employers do not have
an efficient means of identifying workers who are, and are not,
entitled to the FLSA's protections. With this Final Rule, the
Department will ensure that white collar employees who should receive
extra pay for overtime hours will do so and that the test for exemption
remains up-to-date so future workers will not be denied the protections
that Congress intended to afford them.
In 1938, the Department issued the first regulations at 29 CFR part
541 defining the scope of the section 13(a)(1) white collar exemption.
Since 1940, the regulations implementing the exemption have generally
required each of three tests to be met for the exemption to apply: (1)
The employee must be paid a predetermined and fixed salary that is not
subject to reduction because of variations in the quality or quantity
of work performed (the ``salary basis test''); (2) the amount of salary
paid must meet a minimum specified amount (the ``salary level test'');
and (3) the employee's job duties must primarily involve executive,
administrative, or professional duties as defined by the regulations
(the ``duties test''). While payment of a salary does not make an
employee ineligible for overtime compensation, the Department has
nonetheless long recognized the salary level test is the best single
test of exempt status for white collar employees. The salary level test
is an objective measure that helps distinguish white collar employees
who are entitled to overtime from those who may be bona fide executive,
administrative, or professional (EAP) employees. If left at the same
amount over time, however, the effectiveness of the salary level test
as a means of determining exempt status diminishes as the wages of
employees increase and the real value of the salary threshold falls.
The Department has updated the salary level requirements seven
times since 1938, most recently in 2004 when the salary level an
employee must be paid to come within the standard test for EAP
exemption was set at $455 per week ($23,660 per year for a full-year
worker), which nearly tripled the $155 per week minimum salary level
required for exemption up to that point. The Department also modified
the duties tests in 2004, eliminating the ``long'' and ``short'' tests
that had been part of the regulations since 1949 and replacing them
with the ``standard'' test. The historic long test paired a lower
salary requirement with a stringent duties test including a 20 percent
cap on the amount of time most exempt employees could spend on
nonexempt duties, while the short test paired a higher salary
requirement with a less stringent duties test. In other words, prior to
the 2004 Final Rule, to exempt lower-paid employees from receiving
overtime the employer would have to meet more rigorous requirements;
but for higher-paid employees, the requirements to establish the
applicability of the exemption were less rigorous. The standard test
established by the Department in the 2004 Final Rule paired a duties
test closely based on the less-stringent short duties test with a
salary level derived from the lower long test salary level. This had
the effect of making it easier for employers to both pay employees a
lower salary and not pay them overtime for time worked beyond 40 hours.
The 2004 Final Rule also created an exemption for highly compensated
employees (HCE), which imposes a very minimal duties test but requires
that an employee must earn at least $100,000 in total annual
compensation.
On March 13, 2014, President Obama signed a Presidential Memorandum
directing the Department to update the regulations defining which white
collar workers are protected by the FLSA's minimum wage and overtime
standards. 79 FR 18737 (Apr. 3, 2014). The memorandum instructed the
Department to look for ways to modernize and simplify the regulations
while ensuring that the FLSA's intended overtime protections are fully
implemented. The Department published a proposal to update the part 541
regulations on July 6, 2015.
One of the Department's primary goals in this rulemaking is
updating the standard salary requirement, both in light of the passage
of time since 2004, and because the Department has concluded that the
effect of the 2004 Final Rule's pairing of a standard duties test based
on the less rigorous short duties test with the kind of low salary
level previously associated with the more rigorous long duties test was
to exempt from overtime many lower paid workers who performed little
EAP work and whose work was otherwise indistinguishable from their
overtime-eligible colleagues. This has resulted in the inappropriate
classification of employees as EAP exempt--that is overtime exempt--who
pass the standard duties test but would have failed the long duties
test. As the Department noted in our proposal, the salary level's
function in helping to differentiate overtime-eligible employees from
employees who may be exempt takes on greater importance when the duties
test does not include a specific limit on the amount of nonexempt works
that an exempt employee may perform.
In the Notice of Proposed Rulemaking (NPRM), the Department
proposed setting the standard salary level at the 40th percentile of
weekly earnings of full-time salaried workers nationally and setting
the HCE total annual compensation requirement at the annualized value
of the 90th percentile of weekly earnings of full-time salaried workers
nationally. The Department further proposed to automatically update
these levels annually to ensure that they would continue to provide an
[[Page 32393]]
effective test for exemption. In the NPRM, the Department also asked
for the public's comments on whether nondiscretionary bonuses or
incentive payments should count toward some portion of the required
salary level. Finally, the Department also discussed concerns with the
standard duties tests and sought comments on a series of questions
regarding possible changes to the tests.
After considering the comments, the Department has made several
changes from the proposed rule to the Final Rule. In particular, the
Department has modified the standard salary level to more fully account
for the lower salaries paid in certain regions. In this Final Rule, the
Department sets the standard salary level equal to the 40th percentile
of earnings of full-time salaried workers in the lowest-wage Census
Region (currently the South). This results in a salary level of $913
per week, or $47,476 annually for a full-year worker, based on data
from the fourth quarter of 2015.\1\ The Department believes that a
standard salary level set at the 40th percentile of full-time salaried
employees in the lowest-wage Census Region will accomplish the goal of
setting a salary threshold that adequately distinguishes between
employees who may meet the duties requirements of the EAP exemption and
those who likely do not, without necessitating the reintroduction of a
limit on nonexempt work, as existed under the long duties test. The
Department sets the HCE total annual compensation level equal to the
90th percentile of earnings of full-time salaried workers nationally
($134,004 annually based on the fourth quarter of 2015), as we
proposed. This increase will bring the annual compensation requirement
in line with the level established in 2004. The Department believes
that this will avoid the unintended exemption of large numbers of
employees in high-wage areas--such as secretaries in New York City or
Los Angeles--who are clearly not performing EAP duties.
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\1\ The Bureau of Labor Statistics (BLS) estimated this value
using Current Population Survey (CPS) data for earnings of full-time
(defined as at least 35 hours per week) non-hourly paid employees.
For the purpose of this rulemaking, the Department considers data
representing compensation paid to non-hourly workers to be an
appropriate proxy for compensation paid to salaried workers.
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In order to prevent the salary and compensation levels from
becoming outdated, the Department is including in the regulations a
mechanism to automatically update the salary and compensation
thresholds by maintaining the fixed percentiles of weekly earnings set
in this Final Rule. In response to comments, however, the Final Rule
provides for updates every three years rather than for annual updates
as proposed. The first update will take effect on January 1, 2020. The
Department believes that regularly updating the salary and compensation
levels is the best method to ensure that these tests continue to
provide an effective means of distinguishing between overtime-eligible
white collar employees and those who may be bona fide EAP employees.
Based on historical wage growth in the South, at the time of the first
update on January 1, 2020, the standard salary level is likely to be
approximately $984 per week ($51,168 annually for a full-year worker)
and the HCE total annual compensation requirement is likely to be
approximately $147,524.
The Department also revises the regulations to permit employers for
the first time to count nondiscretionary bonuses, incentives, and
commissions toward up to 10 percent of the required salary level for
the standard exemption, so long as employers pay those amounts on a
quarterly or more frequent basis. Finally, the Department has not made
any changes to the duties tests in this Final Rule. The majority of the
revisions occur in Sec. Sec. 541.600, 541.601, 541.602 and new Sec.
541.607; conforming changes were also made in Sec. Sec. 541.100,
541.200, 541.204, 541.300, 541.400, 541.604, 541.605, and 541.709.
In FY2017,\2\ the Department estimates there will be approximately
159.9 million wage and salary workers in the United States, of whom we
estimate that 22.5 million will be exempt EAP workers potentially
affected by this Final Rule.\3\ In Year 1, FY2017, the Department
estimates that 4.2 million currently exempt workers who earn at least
the current weekly salary level of $455 but less than the 40th earnings
percentile in the South ($913) would, without some intervening action
by their employers, become entitled to minimum wage and overtime
protection under the FLSA (Table ES1). Similarly, an estimated 65,000
currently exempt workers who earn at least $100,000 but less than the
annualized earnings of the 90th percentile of full-time salaried
workers nationally ($134,004), and who meet the HCE duties test but not
the standard duties test, may also become eligible for minimum wage and
overtime protection. In Year 10, with triennial automatic updating of
the salary and compensation levels, the Department projects that 5.0
million workers will be affected by the change in the standard salary
level test and 221,000 workers will be affected by the change in the
HCE total annual compensation test.
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\2\ Affected workers, costs, and transfers were estimated for
the 2017 fiscal year (``FY2017'') because this will be the first
year the updated salary levels will be in effect. FY2017 spans from
October 1, 2016 to September 30, 2017.
\3\ White collar workers not subject to the EAP salary level
test include teachers, academic administrative personnel,
physicians, lawyers, judges, and outside sales workers.
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Additionally, the Department estimates that another 5.7 million
white collar workers who are currently overtime eligible because they
do not satisfy the EAP duties tests and who currently earn at least
$455 per week but less than $913 per week will have their overtime
protection strengthened in Year 1 because their status as overtime-
eligible will be clear based on the salary test alone without the need
to examine their duties. Reducing the number of workers for whom
employers must apply the duties test to determine exempt status
simplifies the application of the exemption and is consistent with the
President's directive.
The Department quantified three direct costs to employers in this
Final Rule: (1) Regulatory familiarization costs; (2) adjustment costs;
and (3) managerial costs. Assuming a 7 percent discount rate, the
Department estimates that average annualized direct employer costs will
total $295.1 million per year (Table ES1). In addition to the direct
costs, this Final Rule will also transfer income from employers to
employees in the form of higher earnings. We estimate average
annualized transfers to be $1,189.1 million. The Department also
projects average annualized deadweight loss of $9.2 million, and notes
that the projected deadweight loss is small in comparison to the amount
of estimated costs.
The change to a standard salary level based on the lowest-wage
Census Region has decreased the salary amount from the proposal,
resulting in a smaller number of affected workers and lower transfers
than estimated in the NPRM. Direct costs are higher than predicted in
the NPRM, primarily because the Department has increased its estimate
of the number of affected workers who work some overtime. Additionally,
in response to comments, the Department has increased estimated
regulatory familiarization and adjustment costs in the Final Rule.
Finally, the impacts of the Final Rule extend beyond those we have
estimated quantitatively. The Department
[[Page 32394]]
discusses other transfers, costs, and benefits in the relevant
sections.
Table ES1--Summary of Regulatory Costs and Transfers, Standard and HCE Salary Levels
[Millions 2017$]
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Future years [\a\] Average annualized value
Impact Year 1 ---------------------------------------------------------------
Year 2 Year 10 3% real rate 7% real rate
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Affected Workers (1,000s)
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Standard........................ 4,163 3,893 5,045 .............. ..............
HCE............................. 65 73 217 .............. ..............
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Total....................... 4,228 3,965 5,261 .............. ..............
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Costs and Transfers (Millions 2017$) [\b\]
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Direct employer costs........... 677.9 208.0 284.2 288.0 295.1
Transfers [\c\]................. 1,285.2 936.5 1,607.2 1,201.6 1,189.1
DWL............................. 6.4 8.7 11.1 9.3 9.2
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[\a\] Costs/transfers in years 3 through 9 are within the range bounded by the estimates for years 2 and 10.
[\b\] Costs and transfers for affected workers passing the standard and HCE tests are combined.
[\c\] This is the net transfer from employers to workers. There may also be transfers of hours and income from
some workers to others.
II. Background
A. What the FLSA Provides
The FLSA generally requires covered employers to pay their
employees at least the federal minimum wage (currently $7.25 an hour)
for all hours worked, and overtime premium pay of one and one-half
times the employee's regular rate of pay for all hours worked over 40
in a workweek.\4\ However, there are a number of exemptions from the
FLSA's minimum wage and overtime requirements. Section 13(a)(1) of the
FLSA, codified at 29 U.S.C. 213(a)(1), exempts from both minimum wage
and overtime protection ``any employee employed in a bona fide
executive, administrative, or professional capacity . . . or in the
capacity of outside salesman (as such terms are defined and delimited
from time to time by regulations of the Secretary, subject to the
provisions of [the Administrative Procedure Act] . . .).'' The FLSA
does not define the terms ``executive,'' ``administrative,''
``professional,'' or ``outside salesman.'' Pursuant to Congress' grant
of rulemaking authority, the Department in 1938 issued the first
regulations at part 541 defining the scope of the section 13(a)(1)
exemptions. Because Congress explicitly delegated to the Secretary of
Labor the power to define and delimit the specific terms of the
exemptions through notice and comment rulemaking, regulations so issued
have the binding effect of law. See Batterton v. Francis, 432 U.S. 416,
425 n.9 (1977).
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\4\ As discussed below, the Department estimates that 132.8
million workers are subject to the FLSA and the Department's
regulations. Most of these workers are covered by the Act's minimum
wage and overtime pay protections.
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The Department has consistently used our rulemaking authority to
define and clarify the section 13(a)(1) exemptions. Since 1940, the
implementing regulations have generally required each of three tests to
be met for the exemptions to apply: (1) The employee must be paid a
predetermined and fixed salary that is not subject to reduction because
of variations in the quality or quantity of work performed (the
``salary basis test''); (2) the amount of salary paid must meet a
minimum specified amount (the ``salary level test''); and (3) the
employee's job duties must primarily involve executive, administrative,
or professional duties as defined by the regulations (the ``duties
test'').
Employees who meet the requirements of part 541 are exempted from
both the Act's minimum wage and overtime pay protections. As a result,
an employer may employ such employees for any number of hours in the
workweek without paying the minimum hourly wage or an overtime premium.
Some state laws have stricter exemption standards than those described
above. The FLSA does not preempt any such stricter state standards. If
a State establishes a higher standard than the provisions of the FLSA,
the higher standard applies in that State. See 29 U.S.C. 218.
B. Legislative History
Section 13(a)(1) was included in the original Act in 1938 and was
based on provisions contained in the earlier National Industrial
Recovery Act of 1933 (NIRA) and state law precedents. Specific
references in the legislative history to the exemptions contained in
section 13(a)(1) are scant. Although section 13(a)(1) exempts covered
employees from both the FLSA's minimum wage and overtime requirements,
its most significant impact is its removal of these employees from the
Act's overtime protections.
The requirement that employers pay a premium rate of pay for all
hours worked over 40 in a workweek is grounded in two policy
objectives. The first is to spread employment (or, in other words,
reduce involuntary unemployment) by incentivizing employers to hire
more employees rather than requiring existing employees to work longer
hours. See, e.g., Davis v. J.P. Morgan Chase, 587 F.3d 529, 535 (2d
Cir. 2009). The second policy objective is to reduce overwork and its
detrimental effect on the health and well-being of workers. See, e.g.,
Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739
(1981).
In contrast, the exemptions contained in section 13(a)(1) were
premised on the belief that the type of work exempt employees performed
was difficult to standardize to any time frame and could not be easily
spread to other workers after 40 hours in a week, making enforcement of
the overtime provisions difficult and generally precluding the
potential job expansion intended by the FLSA's time-and-a-half overtime
premium. See Report of the Minimum Wage Study Commission, Volume IV,
pp. 236 and 240 (June 1981).\5\ Further,
[[Page 32395]]
the exempted workers typically earned salaries well above the minimum
wage and were presumed to enjoy other privileges to compensate them for
their long hours of work, setting them apart from the nonexempt workers
entitled to overtime pay. See id.
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\5\ Congress created the Minimum Wage Study Commission as part
of the Fair Labor Standards Amendments of 1977. See Sec. 2(e)(1),
Public Law 95-151, 91 Stat. 1246 (Nov. 1, 1977). This independent
commission was tasked with examining many FLSA issues, including the
Act's minimum wage and overtime exemptions, and issuing a report to
the President and to Congress with the results of its study.
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The universe of employees eligible for the section 13(a)(1)
exemptions has fluctuated with amendments to the FLSA. Initially,
persons employed in a ``local retailing capacity'' were exempt, but
Congress eliminated that language from section 13(a)(1) in 1961 when
the FLSA was expanded to cover retail and service enterprises. See
Public Law 87-30, 75 Stat. 65 (May 5, 1961). Teachers and academic
administrative personnel were added to the exemption when elementary
and secondary schools were made subject to the FLSA in 1966. See Sec.
214, Public Law 89-601, 80 Stat. 830 (Sept. 23, 1966). The Education
Amendments of 1972 made the Equal Pay provisions, section 6(d) of the
FLSA, expressly applicable to employees who were otherwise exempt from
the FLSA under section 13(a)(1). See Sec. 906(b)(1), Public Law 92-318,
86 Stat. 235 (June 23, 1972).
A 1990 enactment expanded the EAP exemptions to include computer
systems analysts, computer programmers, software engineers, and
similarly skilled professional workers, including those paid on an
hourly basis if paid at least 6\1/2\ times the minimum wage. See Sec.
2, Public Law 101-583, 104 Stat. 2871 (Nov. 15, 1990). The compensation
test for computer-related occupations was subsequently capped at $27.63
an hour (6\1/2\ times the minimum wage in effect at the time) as part
of the 1996 FLSA Amendments, when Congress enacted the new section
13(a)(17) exemption for such computer employees. Section 13(a)(17) also
incorporated much of the regulatory language that resulted from the
1990 enactment. See 29 U.S.C. 213(a)(17), as added by the 1996 FLSA
Amendments (Sec. 2105(a), Public Law 104-188, 110 Stat. 1755 (Aug. 20,
1996)).
C. Regulatory History
The FLSA became law on June 25, 1938, and the Department issued the
first version of the part 541 regulations, setting forth criteria for
exempt status under section 13(a)(1), that October. 3 FR 2518 (Oct. 20,
1938). Following a series of public hearings, which were discussed in a
report issued by WHD,\6\ the Department published revised regulations
in 1940, which, among other things, added the salary basis test. 5 FR
4077 (Oct. 15, 1940). Further hearings were convened in 1947, as
discussed in a WHD-issued report,\7\ and the Department issued revised
regulations in 1949, which updated the salary levels required to meet
the salary level test for the various exemptions. 14 FR 7705 (Dec. 24,
1949). An explanatory bulletin interpreting some of the terms used in
the regulations was published as subpart B of part 541 in 1949. 14 FR
7730 (Dec. 28, 1949). In 1954, the Department issued revisions to the
regulatory interpretations of the salary basis test. 19 FR 4405 (July
17, 1954). In 1958, based on another WHD-issued report,\8\ the
regulations were revised to update the required salary levels. 23 FR
8962 (Nov. 18, 1958). Additional changes, including salary level
updates, were made to the regulations in 1961 (26 FR 8635, Sept. 15,
1961), 1963 (28 FR 9505, Aug. 30, 1963), 1967 (32 FR 7823, May 30,
1967), 1970 (35 FR 883, Jan. 22, 1970), 1973 (38 FR 11390, May 7,
1973), and 1975 (40 FR 7091, Feb. 19, 1975). Revisions to increase the
salary levels in 1981 were stayed indefinitely by the Department. 46 FR
11972 (Feb. 12, 1981). In 1985, the Department published an Advance
Notice of Proposed Rulemaking that reopened the comment period on the
1981 proposal and broadened the review to all aspects of the
regulations, including whether to increase the salary levels, but this
rulemaking was never finalized. 50 FR 47696 (Nov. 19, 1985).
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\6\ Executive, Administrative, Professional . . . Outside
Salesman Redefined, Wage and Hour Division, U.S. Department of
Labor, Report and Recommendations of the Presiding Officer (Harold
Stein) at Hearings Preliminary to Redefinition (Oct. 10, 1940)
(``Stein Report'').
\7\ Report and Recommendations on Proposed Revisions of
Regulations, Part 541, by Harry Weiss, Presiding Officer, Wage and
Hour and Public Contracts Divisions, U.S. Department of Labor (June
30, 1949) (``Weiss Report'').
\8\ Report and Recommendations on Proposed Revision of
Regulations, Part 541, Under the Fair Labor Standards Act, by Harry
S. Kantor, Presiding Officer, Wage and Hour and Public Contracts
Divisions, U.S. Department of Labor (Mar. 3, 1958) (``Kantor
Report'').
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The Department revised the part 541 regulations twice in 1992.
First, the Department created a limited exception from the salary basis
test for public employees, permitting public employers to follow public
sector pay and leave systems requiring partial-day deductions from pay
for absences for personal reasons or due to illness or injury not
covered by accrued paid leave, or due to budget-driven furloughs,
without defeating the salary basis test required for exemption. 57 FR
37677 (Aug. 19, 1992). The Department also implemented the 1990 law
requiring it to promulgate regulations permitting employees in certain
computer-related occupations to qualify as exempt under section
13(a)(1) of the FLSA. 57 FR 46744 (Oct. 9, 1992); see Sec. 2, Public
Law 101-583, 104 Stat. 2871 (Nov. 15, 1990).
On March 31, 2003, the Department published a Notice of Proposed
Rulemaking proposing significant changes to the part 541 regulations.
68 FR 15560 (Mar. 31, 2003). On April 23, 2004, the Department issued a
Final Rule (2004 Final Rule), which raised the salary level for the
first time since 1975, and made other changes, some of which are
discussed below. 69 FR 22122 (Apr. 23, 2004). Current regulations
retain the three tests for exempt status that have been in effect since
1940: a salary basis test, a salary level test, and a job duties test.
D. Overview of Existing Regulatory Requirements
The regulations in part 541 contain specific criteria that define
each category of exemption provided by section 13(a)(1) for bona fide
executive, administrative, and professional employees (including
teachers and academic administrative personnel), and outside sales
employees. The regulations also define those computer employees who are
exempt under section 13(a)(1) and section 13(a)(17). See Sec. Sec.
541.400-.402. The employer bears the burden of establishing the
applicability of any exemption from the FLSA's pay requirements. Job
titles and job descriptions do not determine exempt status, nor does
paying a salary rather than an hourly rate. To qualify for the EAP
exemption, employees must meet certain tests regarding their job duties
and generally must be paid on a salary basis of not less than $455 per
week.\9\ In order for the exemption to
[[Page 32396]]
apply, an employee's specific job duties and salary must meet all the
requirements of the Department's regulations. The duties tests differ
for each category of exemption.
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\9\ Alternatively, administrative and professional employees may
be paid on a ``fee basis.'' This occurs where an employee is paid an
agreed sum for a single job regardless of the time required for its
completion. See Sec. 541.605(a). Salary level test compliance for
fee basis employees is assessed by determining whether the hourly
rate for work performed (i.e., the fee payment divided by the number
of hours worked) would total at least $455 per week if the employee
worked 40 hours. See Sec. 541.605(b). Some employees, such as
doctors and lawyers (Sec. 541.600(e)), teachers (Sec. Sec.
541.303(d); 541.600(e)), and outside sales employees (Sec.
541.500(c)), are not subject to a salary or fee basis test. Some,
such as academic administrative personnel, are subject to a special,
contingent salary level. See Sec. 541.600(c). There is also a
separate salary level in effect for workers in American Samoa (Sec.
541.600(a)), and a special salary test for motion picture industry
employees (Sec. 541.709).
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The Department last updated the part 541 regulations in the 2004
Final Rule. Prior to 2004, employers could assert the EAP exemption for
employees who satisfied either a ``long'' test--which paired a more
restrictive duties test with a lower salary level--or a ``short''
test--which paired less stringent duties requirements with a higher
salary level.\10\ In the 2004 Final Rule the Department abandoned the
concept of separate long and short tests, opting instead for one
``standard'' test, and set the salary level under the new standard
duties test at $455 per week for executive, administrative, and
professional employees.
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\10\ From 1949 until 2004 the regulations contained both long
and short tests for exemption.
---------------------------------------------------------------------------
Under the current part 541 regulations, an exempt executive
employee must be compensated on a salary basis at a rate of not less
than $455 per week and have a primary duty of managing the enterprise
or a department or subdivision of the enterprise. See Sec.
541.100(a)(1)-(2). An exempt executive must also customarily and
regularly direct the work of at least two employees and have the
authority to hire or fire, or the employee's suggestions and
recommendations as to the hiring, firing, or other change of status of
employees must be given particular weight. See Sec. 541.100(a)(3)-(4).
An exempt administrative employee must be compensated on a salary
or fee basis at a rate of not less than $455 per week and have a
primary duty of the performance of office or non-manual work directly
related to the management or general business operations of the
employer or the employer's customers. See Sec. 541.200. An exempt
administrative employee's primary duty must include the exercise of
discretion and independent judgment with respect to matters of
significance. See id.
An exempt professional employee must be compensated on a salary or
fee basis at a rate of not less than $455 per week and have a primary
duty of (1) work requiring knowledge of an advanced type in a field of
science or learning customarily acquired by prolonged, specialized,
intellectual instruction and study, or (2) work that is original and
creative in a recognized field of artistic endeavor, or (3) teaching in
a school system or educational institution, or (4) work as a computer
systems analyst, computer programmer, software engineer, or other
similarly-skilled worker in the computer field. See Sec. Sec. 541.300;
541.303; 541.400. An exempt professional employee must perform work
requiring the consistent exercise of discretion and judgment, or
requiring invention, imagination, or talent in a recognized field of
artistic endeavor. See Sec. 541.300(a)(2). The salary requirements do
not apply to certain licensed or certified doctors, lawyers, and
teachers. See Sec. Sec. 541.303(d); 541.304(d).
An exempt outside salesperson must be customarily and regularly
engaged away from the employer's place of business and have a primary
duty of making sales, or obtaining orders or contracts for services or
for the use of facilities. See Sec. 541.500. There are no salary or
fee requirements for exempt outside sales employees. See id.
The 2004 Final Rule also created a test for exemption of highly
compensated executive, administrative, and professional employees.
Under the HCE exemption, employees who are paid total annual
compensation of at least $100,000 (which must include at least $455 per
week paid on a salary or fee basis) are exempt from the FLSA's overtime
requirements if they customarily and regularly perform at least one of
the exempt duties or responsibilities of an executive, administrative,
or professional employee identified in the standard tests for
exemption. See Sec. 541.601. The HCE exemption applies only to
employees whose primary duty includes performing office or non-manual
work; non-management production line workers and employees who perform
work involving repetitive operations with their hands, physical skill,
and energy are not exempt under this section no matter how highly paid.
See id. Finally, in the 2004 Final Rule, the Department, mindful that
nearly 30 years had elapsed between salary level increases, and in
response to commenter concerns that similar lapses would occur in the
future, expressed an intent to ``update the salary levels on a more
regular basis.'' 69 FR 22171.
E. Presidential Memorandum
On March 13, 2014, President Obama signed a Presidential Memorandum
directing the Department to update the regulations defining which
``white collar'' workers are protected by the FLSA's minimum wage and
overtime standards. See 79 FR 18737 (Apr. 3, 2014). The memorandum
instructed the Department to look for ways to modernize and simplify
the regulations while ensuring that the FLSA's intended overtime
protections are fully implemented. As the President noted at the time,
the FLSA's overtime protections are a linchpin of the middle class, and
the failure to keep the salary level requirement for the white collar
exemption up to date has left millions of low-paid salaried workers
without this basic protection.\11\ The current salary level threshold
for exemption of $455 per week, or $23,660 annually, is below the 2015
poverty threshold for a family of four.\12\
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\11\ See http://www.whitehouse.gov/the-press-office/2014/03/13/fact-sheet-opportunity-all-rewarding-hard-work-strengthening-overtime-pr.
\12\ See http://www.census.gov/hhes/www/poverty/data/threshld/index.html (the 2015 poverty threshold for a family of four with two
related children). The 2015 poverty threshold for a family of four
with two related people under 18 in the household is $24,036.
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Following issuance of the memorandum, the Department embarked on an
extensive outreach program, meeting with over 200 organizations in
Washington, DC and several other locations, as well as by conference
call. A wide range of stakeholders attended the listening sessions:
employees, employers, business associations, non-profit organizations,
employee advocates, unions, state and local government representatives,
tribal representatives, and small businesses. In these sessions the
Department asked stakeholders to address, among other issues: (1) What
is the appropriate salary level for exemption; (2) what, if any,
changes should be made to the duties tests; and (3) how can the
regulations be simplified.
The stakeholders shared their concerns with various aspects of the
current regulations, suggestions for changes, and general concerns
about the scope of the exemption. The Department greatly appreciated
the wide range of views that were shared during the outreach sessions.
The information shared during those sessions informed the Department's
NPRM.
The Department's outreach also made clear, however, that there are
some widespread misconceptions about overtime eligibility under the
FLSA, some of which were echoed in the comments received on the NPRM.
For example, many employers and employees mistakenly believe that
payment of a salary automatically disqualifies an employee from
entitlement to overtime compensation irrespective of the duties
performed. Many employees are also unaware of the duties required to be
performed in order for the exemption to apply. Additionally, many
employers seem to mistakenly believe that newly overtime-
[[Page 32397]]
eligible employees (i.e., those earning between the current and new
salary levels) must be converted to hourly compensation.\13\ Similarly,
some employers erroneously believe that they are prohibited from paying
nondiscretionary bonuses to EAP employees, given that they cannot be
used to satisfy the salary requirement. Some employers also mistakenly
believe that the EAP regulations limit their ability to permit white
collar employees to work part-time or job share.\14\
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\13\ Such misconceptions are not new. In 1949 the Department
noted ``the failure of some employers to realize that salary is not
the sole test of exemption.'' Weiss Report at 8 n. 27. In 1940 the
Department responded to the assertion that employers would convert
overtime-eligible white collar employees to hourly pay instead of
more secure salaries, stating: ``Without underestimating the general
desirability of weekly or monthly salaries which enable employees to
adjust their expenditures on the basis of an assured income (so long
as they remain employed), there is little advantage in salaried
employment if it serves merely as a cloak for long hours of work.
Further, such salaried employment may well conceal excessively low
hourly rates of pay.'' Stein Report at 7.
\14\ As the Department has previously explained, there is no
special salary level for EAP employees working less than full-time.
See 69 FR 22171. Employers, however, can pay white collar employees
working part-time or job sharing a salary of less than the required
EAP salary threshold and will not violate the Act so long as the
salary equals at least the minimum wage for all hours worked and the
employee does not work more than 40 hours a week. See FLSA2008-1NA
(Feb. 14, 2008). See also section IV.A.iv.
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F. The Department's Proposal
On July 6, 2015, in accordance with the Presidential Memorandum,
the Department published a Notice of Proposed Rulemaking to propose
revisions to the part 541 regulations. See 80 FR 38516 (July 6, 2015).
The Department's proposal focused primarily on updating the salary and
HCE compensation levels by proposing that the standard salary level be
set at the 40th percentile of weekly earnings of full-time salaried
workers, proposing to increase the HCE annual compensation requirement
to the annualized value of the 90th percentile of weekly earnings of
full-time salaried workers, and proposing a mechanism for automatically
updating the salary and compensation levels going forward to ensure
that they will continue to provide a useful and effective test for
exemption. While the primary regulatory changes proposed were in
Sec. Sec. 541.600 and 541.601, the Department proposed additional
conforming changes to update references to the salary level throughout
part 541 as well as to update the special salary provisions for
American Samoa and the motion picture industry. In addition to these
proposed changes, the Department also discussed whether to include
nondiscretionary bonuses in determining whether the standard salary
level is met and whether changes to the duties tests are warranted, but
did not propose specific regulatory revisions on these issues.
More than 270,000 individuals and organizations timely commented on
the NPRM during the sixty-day comment period that ended on September 4,
2015. The Department received comments from a broad array of
constituencies, including small business owners, Fortune 500
corporations, employer and industry associations, individual workers,
worker advocacy groups, unions, non-profit organizations, law firms
(representing both employers and employees), educational organizations
and representatives, religious organizations, economists, Members of
Congress, federal government agencies, state and local governments and
representatives, tribal governments and representatives, professional
associations, and other interested members of the public. All timely
received comments may be viewed on the www.regulations.gov Web site,
docket ID WHD-2015-0001.
Several organizations' submissions included attachments from their
individual members generally using substantively identical form
comments: For example, AFSCME (24,122 comments), Center for American
Progress (6,697 comments from two submissions), CREDO Action (58,927
comments), Democracy for America (34,932 comments), Economic Policy
Institute (72,131 comments from five submissions), Faculty Forward and
SEIU (515 comments), Jobs with Justice (5,136 comments), Mom's Rising
(16,114 comments from three submissions), National Partnership for
Women and Families (21,192 comments from two submissions), National
Restaurant Association (2,648 comments), National Women's Law Center
(6,753 comments from two submissions), Partnership to Protect Workplace
Opportunity (1,770 comments from five submissions), Social Security
Works (15,575 comments), Society for Human Resource Management (827
comments from two submissions), and others. Other organizations
attached membership signatures to their comments. These included Care2
(37,459 signatures), the International Franchise Association (17
signatures), Organizing for Action (76,625 signatures), and 15
different post-doctoral associations (560 signatures).
Many of the comments the Department received were: (1) Very general
statements of support or opposition; (2) personal anecdotes that did
not address a specific aspect of the proposed changes; or (3) identical
or nearly identical ``campaign'' comments sent in response to comment
initiatives sponsored by various groups. A large number of commenters
favored some change to the existing regulations, and commenters
expressed a wide variety of views on the merits of particular aspects
of the Department's proposal. Some commenters requested that the
Department withdraw the proposal. Acknowledging that there are strong
views on the issues presented in this rulemaking, the Department has
carefully considered the timely submitted comments addressing the
proposed changes.
Significant issues raised in the timely received comments are
discussed below, together with the Department's response to those
comments and a topical discussion of the changes that have been made in
the Final Rule and its regulatory text. The Department also received a
number of submissions after the close of the comment period, including
some campaign comments, from a range of commenters representing both
employers and employees. Late comments were not considered in the
development of this Final Rule, and are not discussed in this Final
Rule. In instances where an organization submitted both timely and
untimely comments, only the timely comments were considered.
The Department received a number of comments that are beyond the
scope of this rulemaking. These include, for example, comments asking
the Department to issue a rule requiring employers to provide employees
with ``clear pay stubs,'' and requesting that the Department clarify
the definition of ``establishment'' under the exemption for seasonal
amusement or recreational establishments. The Department does not
address such issues in this Final Rule.
A number of commenters asked the Department to provide guidance on
how the FLSA applies to non-profit organizations. See, e.g., Alliance
for Strong Families and Communities (describing ``a tremendous amount
of confusion in the non-profit sector concerning who is currently
covered by FLSA''); Independent Sector (stating that this rulemaking
process has ``highlighted a lack of clarity regarding when and how the
Fair Labor Standards Act applies to the nonprofit sector workforce'');
Alliance of Arizona Nonprofits. Some commenters, such as CASA, asserted
that most charitable organizations are not covered
[[Page 32398]]
enterprises under the FLSA and, as a result, this rulemaking ``will not
reach a very sizable number of employees of not-for-profit
organizations.'' Other commenters stated that non-profit employees may
be individually covered because they engage in interstate commerce. A
comment submitted on behalf of 57 professors specializing in employment
and labor law, however, asserted that the ``overwhelming majority of
the millions of employees excluded from FLSA coverage because their
not-for-profit employers are not subject to enterprise coverage also
are not subject to individual FLSA coverage,'' and Economic Policy
Institute (EPI) asserted that non-profit employers can limit the number
of employees covered on an individual basis by managing interstate
commerce activity.
The Department notes that the FLSA does not provide special rules
for non-profit organizations or their employees, nor does this Final
Rule. Nevertheless, we agree that it is important for such
organizations to understand their obligations under the Act. As a
general matter, non-profit charitable organizations are not covered
enterprises under the FLSA unless they engage in ordinary commercial
activities (for example, operating a gift shop). See 29 U.S.C. 203(r)-
(s), 206(a), 207(a). For a non-profit organization, enterprise coverage
applies only to the activities performed for a business purpose; it
does not extend to the organization's charitable activities. An
organization that performs only charitable services, such as providing
free food to the hungry, is not a covered enterprise; however, an
employee of such a non-profit employer may nevertheless be covered on
an individual basis. See 29 U.S.C. 206(a), 207(a). The FLSA covers an
employee on an individual basis--that is, an individual is protected by
the FLSA regardless of whether the individual works for a covered
enterprise--if he or she engages in interstate commerce through
activities such as making out-of-state phone calls, sending mail, or
handling credit card transactions. This individual coverage applies
even if the employee is not engaging in such activities for a business
purpose. For example, if an employee regularly calls an out-of-state
store and uses a credit card to purchase food for a non-profit that
provides free meals for the homeless, that employee is protected by the
FLSA on an individual basis, even though the non-profit may not be
covered as an enterprise. WHD, however, will not assert that an
employee who on isolated occasions spends an insubstantial amount of
time performing such work is individually covered by the FLSA.
The Department also refers interested stakeholders to guidance on
the application of the FLSA to non-profit organizations available in
WHD Fact Sheet #14A: Non-Profit Organizations and the Fair Labor
Standards Act; \15\ see also Fact Sheet #14: Coverage Under the Fair
Labor Standards Act (FLSA).\16\ Additional information regarding the
applicability of the FLSA to non-profits can be found in the WHD
Administrator's blog post.\17\ Moreover, a number of WHD Opinion
Letters address the applicability of the FLSA to non-profits. See,
e.g., FLSA2009-20 (Jan. 16, 2009); FLSA2008-8 (Sept. 29, 2008);
FLSA2005-52 (Nov. 14, 2005); FLSA2005-8NA (Sept. 2, 2005); FLSA2005-
12NA (Sept. 23, 2005); FLSA2004-29NA (Nov. 30, 2004).\18\ Finally, the
Department is issuing additional guidance for the non-profit sector in
connection with the publication of this Final Rule.
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\15\ Available at: http://www.dol.gov/whd/regs/compliance/whdfs14a.pdf.
\16\ Available at: http://www.dol.gov/whd/regs/compliance/whdfs14.pdf.
\17\ Available at: http://blog.dol.gov/2015/08/26/non-profits-and-the-proposed-overtime-rule/.
\18\ Available at: http://www.dol.gov/whd/opinion/flsa.htm;
http://www.dol.gov/whd/opinion/flsana.htm.
---------------------------------------------------------------------------
Commenters also asked for guidance on the application of the EAP
exemption to educational institutions. See, e.g., College and
Universities Human Resources Executives; Michigan Head Start; Savannah-
Chatham County Public School System. Preschools, elementary and
secondary schools, and institutions of higher education are covered by
the FLSA, and nothing in this Final Rule changes that coverage. 29
U.S.C. 203(r)(2)(A). Employees of such institutions therefore are
generally protected by the FLSA's minimum wage and overtime provisions;
however, special provisions apply to many personnel at these
institutions that make them overtime exempt.
Although the EAP exemption expressly applies to an ``employee
employed in the capacity of academic administrative personnel or
teacher'' 29 U.S.C. 213(a)(1); see Sec. Sec. 541.204, .303, the salary
level and salary basis requirements do not apply to bona fide teachers.
Sec. 541.303(d), .600(e). Accordingly, the increase in the standard
salary level in this Final Rule will not affect the overtime
eligibility of bona fide teachers.
Commenters such as the NEA asked the Department to clarify which
workers qualify as bona fide teachers. Teachers are exempt if their
primary duty is teaching, tutoring, instructing or lecturing in the
activity of imparting knowledge, and if they are employed and engaged
in this activity as a teacher in an educational establishment. Sec.
541.303(a). An educational establishment is ``an elementary or
secondary school system, an institution of higher education or other
educational institution.'' \19\ Sec. 541.204(b). Teachers may include
professors, adjunct instructors, primary and secondary school teachers,
and teachers of skilled and semi-skilled trades and occupations.
Preschool and kindergarten teachers may also qualify for exemption
under the same conditions as teachers in elementary and secondary
schools. See Fact Sheet #46: Daycare Centers and Preschools Under the
Fair Labor Standards Act. In addition, coaches may qualify for the
exemption if their primary duty is teaching as opposed to recruiting
students to play sports or performing manual labor. Some commenters
addressed other non-teaching staff. For example, CUPA-HR commented
about workers including academic affairs counselors and advisors,
textbook managers, and managers in food service, security, and building
and grounds, among other employees working at colleges and
universities. Academic administrative personnel subject to the
exemption include: Superintendents; principals and vice-principals;
department heads in institutions of higher education; academic
counselors and advisors; and other employees with similar
responsibilities. Academic administrative employees are subject to the
salary basis requirement, but the Department notes that a special
provision allows this requirement to be met if such employees are paid
``on a salary basis which is at least equal to the entrance salary for
teachers in the educational establishment by which [they are]
employed.'' Sec. 541.204(a)(1). To the extent that this entrance
salary is below the salary level established in this rule, academic
administrative personnel will be exempt if their salary equals or
exceeds the entrance salary. Employees whose work relates to general
business operations, building management and maintenance, or the health
of students and staff (such as lunch room managers), do not perform
academic administrative functions. Sec. 541.204(c).
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\19\ For purposes of the exemption, no distinction is drawn
between public and private schools, or between those operated for
profit and those that are not for profit. Sec. 541.204(b).
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The Department also received several comments about postdoctoral
scholars.
[[Page 32399]]
See, e.g., Association of American Medical Colleges; National
Postdoctoral Association; UAW Local 5810. Postdoctoral scholars who do
not have a primary duty of teaching are not considered bona fide
teachers; these employees would generally meet the duties test for the
learned professional exemption and would be subject to the salary basis
and salary level tests.
Finally, the Council on Government Relations commented that ``it is
our understanding that the Wage and Hour Division does not assert an
employee-employer relationship for graduate students who are
simultaneously performing research under faculty supervision.'' The
Department views graduate students in a graduate school engaged in
research under the supervision of a member of the faculty and in the
course of obtaining advanced degrees as being in an educational
relationship and not in an employment relationship with either the
school or of any grantor funding the research, even though the student
may receive a stipend for performing the research. 1994 WL 1004845
(June 28, 1994). In an effort to assist the educational sector with the
issues addressed above, the Department is issuing additional guidance
for this sector in connection with the publication of this Final Rule.
Lastly, in an attempt to address concerns that the terms exempt and
nonexempt were not sufficiently descriptive or intuitive, in the NPRM
the Department used the terms ``overtime-protected'' and ``overtime-
eligible'' as synonyms for nonexempt, and ``not overtime-protected''
and ``overtime-ineligible'' as synonyms for exempt.\20\ The Department
received very few comments on this new terminology. The Department
believes that these new terms are less confusing to the public and
continues to use them in this Final Rule.
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\20\ The Department is using the more precise term ``overtime
exempt'' rather than ``overtime-ineligible'' in this Final Rule.
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G. Effective Date
The Department received a number of comments concerning the
effective date of the Final Rule. Citing the need to reduce the burden
of implementation, many commenters representing employers requested a
delayed effective date following publication of the Final Rule.
Commenters including the Fisher & Phillips law firm, the National
Association of Independent Schools and the National Association of
Business Officers, requested an effective date at least 120 days after
publication as was done in the Department's 2004 rulemaking.
Other commenters requested a longer period. The American Car Rental
Association (ACRA), Dollar Tree, and the Retail Industry Leaders
Association (RILA) each requested a delayed effective date of at least
six months following publication of the Final Rule. The United States
Chamber of Commerce (Chamber), the Food Marketing Institute (FMI), H-E-
B, Island Hospitality Management, the National Association of Landscape
Professionals (NALP), the National Council of Chain Restaurants (NCCR),
the National Retail Federation (NRF), and the Securities Industry and
Financial Markets Association (SIFMA) each requested a one-year delayed
effective date. Finally, Laff and Associates, the National Association
for Home Care and Hospice, and American Network of Community Options
and Resources (ANCOR), which coordinated with more than three dozen
home health care organizations, submitted comments requesting an
effective date at least two years following publication of the Final
Rule, to afford states sufficient time to allocate and appropriate
funding.
More than 55,000 individuals submitted comments coordinated by the
Center for American Progress, EPI, and MomsRising, requesting that the
salary level be raised without delay. Many labor organizations and
social justice and women's advocacy organizations, including the Center
for Law and Social Policy, the Center for Popular Democracy, the First
Shift Justice Project, the Institute for Women's Policy Research
(IWPR), the Leadership Conference on Civil and Human Rights, the
National Education Association (NEA), the National Coalition of
Classified Education Support Employees Union, the National Urban
League, the Public Justice Center, the United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), Women Employed, and
others, similarly urged the Department to implement the Final Rule as
soon as possible.
The Department has set an effective date of December 1, 2016 for
the Final Rule. As several commenters noted, the Department's 2004
Final Rule set an effective date 120 days following publication of the
final rule. See 79 FR 22126 (April 23, 2004). Explaining that a 120-day
effective date exceeds the 30-day minimum required under the
Administrative Procedure Act (APA), 5 U.S.C. 553(d), and the 60 days
mandated for a ``major rule'' under the Congressional Review Act, 5
U.S.C. 801(a)(3)(A), we concluded at that time that ``a period of 120
days after the date of publication will provide employers ample time to
ensure compliance with the final regulations.'' Id. The changes
provided in the 2004 Final Rule were more extensive and more
complicated for employers to implement--the 2004 Final Rule included
several significant changes: (1) A significant percentage increase in
the salary threshold; (2) a significant reorganization of the part 541
regulations; (3) the elimination of the short and long test structure
that had been in place for more than 50 years and the creation of a
single standard test; and (4) the creation of a new test for highly
compensated employees. In light of the Department's decision not to
make changes to the standard duties test at this time, the primary
change in this Final Rule is the revision to the salary level test and,
therefore, this rule will be much less complicated for employers to
implement. Accordingly, the Department believes that the December 1,
2016 effective date for this Final Rule (more than 180 days after
publication) will provide ample time for employers to ensure
compliance.
Multiple commenters also requested a delayed enforcement period or
some form of safe harbor following the effective date of the Final Rule
ranging from six months to two years. See, e.g., ACRA; American
Insurance Association and the Property Casualty Insurers Association of
America (AIA-PCI); AT&T; Chamber; Dollar Tree; International Franchise
Association (IFA); the Littler Mendelson law firm; RILA; the Wessels
Sherman law firm; World Travel. Several commenters also asked the
Department to provide compliance assistance, whether related
specifically to the changes implemented by the Final Rule or more
broadly to the FLSA's white collar regulations in general. See, e.g.,
Chamber; Dollar Tree; IFA; Littler Mendelson; RILA.
The Department appreciates employer concerns regarding compliance
and enforcement in light of this rulemaking. As explained above, the
Department believes that the December 1, 2016 effective date will
provide employers ample time to make any changes that are necessary to
comply with the final regulations. The Department will also provide
significant outreach and compliance assistance, and will issue a number
of guidance documents in connection with the publication of this Final
Rule.
III. Need for Rulemaking
One of the Department's primary goals in this rulemaking is
updating the section 13(a)(1) exemption's standard
[[Page 32400]]
salary level requirement. A salary level test has been part of the
regulations since 1938 and has been long recognized as ``the best
single test'' of exempt status. Stein Report at 19, 42; see Weiss
Report at 8-9; Kantor Report at 2-3. The salary an employer pays an
employee provides ``a valuable and easily applied index to the `bona
fide' character of the employment for which exemption is claimed'' and
ensures that section 13(a)(1) of the FLSA ``will not invite evasion of
section 6 [minimum wage] and section 7 [overtime] for large numbers of
workers to whom the wage-and-hour provisions should apply.'' Stein
Report at 19.
The salary level's function in differentiating exempt from
overtime-eligible employees takes on greater importance when there is
only one duties test that has no limitation on the amount of nonexempt
work that an exempt employee may perform, as has been the case since
2004. Historically, the Department set two different salary tests that
were paired with different duties tests. The long test salary level set
at the low end of salaries paid to exempt employees imposed a cap on
the amount of nonexempt work that an exempt employee could perform.
This aspect of the long duties test made it effective in distinguishing
lower-paid exempt EAP employees from overtime-eligible employees. In
effect, the long duties test ensured that employers could not avoid
paying overtime by assigning lower-paid employees a minimal amount of
exempt work. The short test salary level, which was historically set at
a level between 130 and 180 percent of the long test salary level, did
not impose any specific limit on the amount of nonexempt work since
that distinction was not considered necessary to aid in classifying
higher-paid exempt EAP employees. In eliminating the two salary tests
in 2004, the Department instead set the single standard salary level
equivalent to the historic levels of the former long test salary, but
paired it with a standard duties test based on the short duties test,
which did not include a limit on nonexempt work. The effect of this
mismatch was to exempt from overtime many lower-wage workers who
performed little EAP work and whose work was otherwise
indistinguishable from their overtime-eligible colleagues.
The Department has now concluded that the standard salary level we
set in 2004 did not account for the absence of the more rigorous long
duties test and thus has been less effective in distinguishing between
EAP employees who are exempt from overtime and overtime-eligible
employees. Additionally, the salary level required for exemption under
section 13(a)(1) is currently $455 a week and has not been updated in
more than 10 years. The annual value of the salary level ($23,660) is
now lower than the poverty threshold for a family of four. As the
relationship between the current standard salary level and the poverty
threshold shows, the effectiveness of the salary level test as a means
of helping determine exempt status diminishes as the wages of employees
entitled to overtime pay increase and the real value of the salary
threshold falls.
By way of this rulemaking, the Department seeks to update the
standard salary level to ensure that it works effectively with the
standard duties test to distinguish exempt EAP employees from overtime-
protected white collar workers. This will make the exemptions easier
for employers and workers to understand and ensure that the FLSA's
intended overtime protections are fully implemented. The Department
also proposed to update the total annual compensation required for the
HCE exemption, because it too has been unchanged since 2004 and must be
updated to avoid the unintended exemption of employees in high-wage
areas who are clearly not performing EAP duties.
In a further effort to respond to changing conditions in the
workplace, the Department's proposal also requested comment on whether
to allow nondiscretionary bonuses and incentive payments to satisfy
some portion of the standard test salary requirement. Currently, such
bonuses are only included in calculating total annual compensation
under the HCE test, but some stakeholders have urged broader inclusion,
pointing out that in some industries significant portions of salaried
EAP employees' earnings may be in the form of such bonuses.
The Department also proposed automatically updating the salary and
compensation levels to prevent the levels from becoming outdated. The
Department proposed to automatically update the standard salary test,
the total annual compensation requirement for highly compensated
employees, and the special salary levels for American Samoa and for
motion picture industry employees, in order to ensure the continued
utility of these tests over time. As the Department explained in 1949,
the salary test is only a strong measure of exempt status if it is up
to date, and a weakness of the salary test is that increases in wage
rates and salary levels over time gradually diminish its effectiveness.
See Weiss Report at 8. A rule providing for automatic updates to the
salary level using a consistent methodology that has been subject to
notice and comment rulemaking will maintain the utility of the dividing
line set by the salary level without the need for frequent rulemaking.
This modernization of the regulations will provide predictability for
employers and employees by replacing infrequent, and thus more drastic,
salary level increases with gradual changes occurring at set intervals.
Finally, the Department has always recognized that the salary level
test works in tandem with the duties tests to identify bona fide EAP
employees. The Department discussed concerns with the duties test for
executive employees in the NPRM. The proposal also included questions
about the duties tests including requiring exempt employees to spend a
specified amount of time performing their primary duty (e.g., a 50
percent primary duty requirement as required under California state
law) or otherwise limiting the amount of nonexempt work an exempt
employee may perform, and adding to the regulations additional examples
illustrating how the exemption may apply to particular occupations. The
Department's proposal sought feedback on whether such revisions to the
duties tests are needed to ensure that these tests fully reflect the
purpose of the exemption.
IV. Final Regulatory Revisions
A. Standard Salary Level
i. History of the Standard Salary Level
The FLSA became law on June 25, 1938, and the first version of part
541, issued later that year, set a minimum salary level of $30 per week
for exempt executive and administrative employees. See 3 FR 2518. Since
1938, the Department has increased the salary levels seven times: in
1940, 1949, 1958, 1963, 1970, 1975, and 2004. See Table A. While the
Department has refined the method for calculating the salary level to
fulfill its mandate, the purpose of the salary level requirement has
remained consistent--to define and delimit the scope of the executive,
administrative, and professional exemptions. See 29 U.S.C. 213(a)(1).
The Department has long recognized that the salary paid to an employee
is the ``best single test'' of exempt status, Stein Report at 19, and
that the salary level test furnishes a ``completely objective and
precise measure which is not subject to differences of opinion or
variations in judgment.'' Weiss Report at 8-9. The Department
reaffirmed this position in the 2004 Final Rule, explaining that the
``salary level test is intended to help
[[Page 32401]]
distinguish bona fide executive, administrative, and professional
employees from those who were not intended by Congress to come within
these exempt categories,'' and reiterating that any increase in the
salary level must ``have as its primary objective the drawing of a line
separating exempt from nonexempt employees.'' 69 FR 22165.
Table A--Weekly Salary Levels for Exemption
----------------------------------------------------------------------------------------------------------------
Long test
Date enacted ------------------------------------------------ Short test
Executive Administrative Professional (all)
----------------------------------------------------------------------------------------------------------------
1938............................................ $30 $30 .............. ..............
1940............................................ 30 50 $50 ..............
1949............................................ 55 75 75 $100
1958............................................ 80 95 95 125
1963............................................ 100 100 115 150
1970............................................ 125 125 140 200
1975............................................ 155 155 170 250
----------------------------------------------------------------------------------------------------------------
Standard Test
----------------------------------------------------------------------------------------------------------------
2004............................................ $455
----------------------------------------------------------------------------------------------------------------
In 1940, the Department maintained the $30 per week salary level set in
1938 for executive employees, increased the salary level for
administrative employees, and established a salary level for
professional employees. The Department used salary surveys from federal
and state government agencies, experience gained under the National
Industrial Recovery Act, and federal government salaries to determine
the salary level that was the ``dividing line'' between employees
performing exempt and nonexempt work. See Stein Report at 9, 20-21, 31-
32. The Department recognized that the salary level falls within a
continuum of salaries that overlaps the outer boundaries of exempt and
nonexempt employees. Specifically, the Department stated:
To make enforcement possible and to provide for equity in
competition, a rate should be selected in each of the three
definitions which will be reasonable in the light of average
conditions for industry as a whole. In some instances the rate
selected will inevitably deny exemption to a few employees who might
not unreasonably be exempted, but, conversely, in other instances it
will undoubtedly permit the exemption of some persons who should
properly be entitled to the benefits of the act.
Id. at 6. Taking into account the average salary levels for employees
in numerous industries, and the percentage of employees earning below
these amounts, the Department set the salary level for each exemption
slightly below the ``dividing line'' suggested by these averages.
In 1949, the Department again looked at salary data from state and
federal agencies, including the Bureau of Labor Statistics (BLS). The
data reviewed included wages in small towns and low-wage industries,
earnings of federal employees, average weekly earnings for exempt
employees, starting salaries for college graduates, and salary ranges
for different occupations such as bookkeepers, accountants, chemists,
and mining engineers. See Weiss Report at 10, 14-17, 19-20. The
Department noted that the ``salary level adopted must exclude the great
bulk of nonexempt persons if it is to be effective.'' Id. at 18.
Recognizing that the ``increase in wage rates and salary levels'' since
1940 had ``gradually weakened the effectiveness of the present salary
tests as a dividing line between exempt and nonexempt employees,'' the
Department calculated the percentage increase in weekly earnings from
1940 to 1949, and then adopted new salary levels ``at a figure slightly
lower than might be indicated by the data'' in order to protect small
businesses. Id. at 8, 14. The Department also cautioned that ``a
dividing line cannot be drawn with great precision but can at best be
only approximate.'' Id. at 11.
Also in 1949, the Department established a second, less-stringent
duties test for each exemption, but only for those employees paid at or
above a higher ``short test'' salary level. Those paid above the higher
salary level were exempt if they also met a ``short'' duties test,
which lessened the duties requirements for exemption.\21\ The original,
more thorough duties test became known as the ``long'' test, and
remained for more than 50 years the test employers were required to
satisfy for those employees whose salary was insufficient to meet the
higher short test salary level. Apart from the differing salary
requirements, the most significant difference between the short test
and the long test was the long test's limit on the amount of time an
exempt employee could spend on nonexempt duties while allowing the
employer to claim the exemption. A bright-line, 20 percent cap on
nonexempt work was instituted as part of the long duties test in 1940
for executive and professional employees, and in 1949 for
administrative employees.\22\ The short duties tests did not include a
specific limit on nonexempt work.\23\ The rationale for the less
rigorous short duties test was that employees who met the higher salary
level were more likely to meet ``all the requirements for exemption . .
. including the requirement with respect
[[Page 32402]]
to nonexempt work.'' Id. at 22-23. Thus, a ``short-cut test for
exemption . . . would facilitate the administration of the regulations
without defeating the purposes of section 13(a)(1).'' Id.
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\21\ These higher salary levels are presented under the ``Short
Test'' heading in Table A.
\22\ By statute, beginning in 1961, retail employees could spend
up to 40 percent of their hours worked performing nonexempt work and
still be found to meet the duties tests for the EAP exemption. See
29 U.S.C. 213(a)(1).
\23\ For example, the long duties test in effect from 1949 to
2004 for administrative employees required that an exempt employee:
(1) Have a primary duty consisting of the performance of office or
non-manual work directly related to management policies or general
business operations of the employer or the employer's customers; (2)
customarily and regularly exercise discretion and independent
judgment; (3) regularly and directly assist a proprietor or a bona
fide executive or administrative employee, or perform under only
general supervision work along specialized or technical lines
requiring special training, experience, or knowledge, or execute
under only general supervision special assignments and tasks; and
(4) not devote more than 20 percent (or 40 percent in a retail or
service establishment) of hours worked in the workweek to activities
that are not directly and closely related to the performance of the
work described above. See Sec. 541.2 (2003). By contrast, the short
duties test in effect during the 1949 to 2004 period provided that
an administrative employee paid at or above the short test salary
level qualified for exemption if the employee's primary duty
consisted of the performance of office or non-manual work directly
related to management policies or general business operations of the
employer or the employer's customers which includes work requiring
the exercise of discretion and independent judgment. See id.
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In contrast to the Department's extensive discussion of the
methodology for setting the long test salary level, the Department's
rulemakings have included comparatively little discussion of the
methodology for setting the short test levels. While the Department set
the long test salary level based on an analysis of the defined sample,
we set the short test salary level in relation to the long test salary,
and the initial short test salary set in 1949 was 133 percent of the
highest long test salary (administrative and professional). In 1958,
the Department rejected the suggestion that the short test salary level
should be increased by the same dollar amount that the highest long
test salary levels were increased and instead increased the short test
salary to maintain the ``percentage differential in relation to the
highest [long test] salary requirement.'' See Kantor Report at 10. In
1970, the Department adopted a ``slightly higher percentage
differential'' between the ``basic and [short test] salary figures,''
than previously existed, resulting in an approximately 143 percent
ratio between the highest long test salary level (professional) and the
short test. 35 FR 885. From 1949 to 1975 the Department set a single
short test salary level that applied to all categories of EAP employees
while maintaining multiple long test salary levels that applied to the
different categories. The ratio of the short test salary level to the
long test salary levels ranged from approximately 130 percent to 180
percent over this period.\24\ The existence of separate short and long
tests remained part of the Department's regulations until 2004. See
Table A.
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\24\ The smallest ratio occurred in 1963 and was between the
long test salary requirement for professionals ($115) and the short
test salary level ($150). The largest ratio occurred in 1949 and was
between the long test salary requirement for executives ($55) and
the short test salary level ($100).
---------------------------------------------------------------------------
In setting the long test salary level in 1958, the Department
considered data collected during 1955 WHD investigations on the
``actual salaries paid'' to employees who ``qualified for exemption''
(i.e., met the applicable salary and duties tests), grouped by
geographic region, broad industry groups, number of employees, and city
size, and supplemented with BLS and Census data to reflect income
increases of white collar and manufacturing employees during the period
not covered by the Department's investigations. Kantor Report at 6. The
Department then set the long test salary levels for exempt employees
``at about the levels at which no more than about 10 percent of those
in the lowest-wage region, or in the smallest size establishment group,
or in the smallest-sized city group, or in the lowest-wage industry of
each of the categories would fail to meet the tests.'' Id. at 6-7. In
other words, the Department set the long test salary level so that only
a limited number of workers performing EAP duties (about 10 percent) in
the lowest-wage regions and industries would fail to meet the salary
level test and therefore be overtime protected. In laying out this
methodology, the Department echoed comments from the Weiss Report that
the salary tests ``simplify enforcement by providing a ready method of
screening out the obviously nonexempt employees,'' and that
``[e]mployees that do not meet the salary test are generally also found
not to meet the other requirements of the regulations.'' Id. at 2-3.
The Department also noted that in our experience misclassification of
overtime-protected employees occurs more frequently when the salary
levels have ``become outdated by a marked upward movement of wages and
salaries.'' Id. at 5.
The Department followed a similar methodology when determining the
appropriate long test salary level increase in 1963, using data
regarding salaries paid to exempt workers collected in a 1961 WHD
survey. See 28 FR 7002. The salary level for executive and
administrative employees was increased to $100 per week, for example,
when the 1961 survey data showed that 13 percent of establishments paid
one or more exempt executives less than $100 per week, and 4 percent of
establishments paid one or more exempt administrative employees less
than $100 a week. See 28 FR 7004. The professional exemption salary
level was increased to $115 per week, when the 1961 survey data showed
that 12 percent of establishments surveyed paid one or more
professional employees less than $115 per week. See id. The Department
noted that these salary levels approximated the same percentages used
in 1958:
Salary tests set at this level would bear approximately the same
relationship to the minimum salaries reflected in the 1961 survey
data as the tests adopted in 1958, on the occasion of the last
previous adjustment, bore to the minimum salaries reflected in a
comparable survey, adjusted by trend data to early 1958. At that
time, 10 percent of the establishments employing executive employees
paid one or more executive employees less than the minimum salary
adopted for executive employees and 15 percent of the establishments
employing administrative or professional employees paid one or more
employees employed in such capacities less than the minimum salary
adopted for administrative and professional employees.
Id.
The Department continued to use a similar methodology when updating
the long test salary levels in 1970. After examining data from 1968 WHD
investigations, 1969 BLS wage data, and information provided in a
report issued by the Department in 1969 that included salary data for
executive, administrative, and professional employees,\25\ the
Department increased the long test salary level for executive employees
to $125 per week when the salary data showed that 20 percent of
executive employees from all regions and 12 percent of executive
employees in the West earned less than $130 a week. See 35 FR 884-85.
The Department also increased the long test salary levels for
administrative and professional employees to $125 and $140,
respectively.
---------------------------------------------------------------------------
\25\ Earnings Data Pertinent to a Review of the Salary Tests for
Executive, Administrative and Professional Employees As Defined in
Regulations Part 541, (1969), cited in 34 FR 9935.
---------------------------------------------------------------------------
In 1975, instead of following these prior approaches, the
Department set the long test salary levels based on increases in the
Consumer Price Index (CPI), although the Department adjusted the salary
level downward ``in order to eliminate any inflationary impact.'' 40 FR
7091. As a result of this recalibration of the 1970 levels, the long
test salary level for the executive and administrative exemptions was
set at $155, while the professional level was set at $170. The salary
levels adopted were intended as interim levels ``pending the completion
and analysis of a study by [BLS] covering a six month period in 1975,''
and were not meant to set a precedent for future salary level
increases. Id. at 7091-92. Although the Department intended to revise
the salary levels after completion of the BLS study of actual salaries
paid to employees, the envisioned process was never completed, and the
``interim'' salary levels remained unchanged for the next 29 years.
As reflected in Table A, the short test salary level increased in
tandem with the long test level throughout the various rulemakings
since 1949. Because the short test was designed to capture only those
white collar employees whose salary was sufficiently high to indicate a
stronger likelihood of exempt status and thus warrant a less stringent
duties requirement, the short
[[Page 32403]]
test salary level was always set significantly higher than the long
test salary levels. Thus, in 1975 while the long test salary levels
ranged from $155 to $170, the short test level was $250.
The salary level test was most recently updated in 2004, when the
Department abandoned the concept of separate long and short tests,
opting instead for one ``standard'' test, and set the salary level
associated with the new standard duties test at $455 for executive,
administrative, and professional employees. Due to the lapse in time
between the 1975 and 2004 rulemakings, the salary threshold for the
long duties tests (i.e., the lower salary level) did not reflect
salaries being paid in the economy and had become ineffective at
distinguishing between overtime-eligible and overtime exempt white
collar employees. For example, at the time of the 2004 Final Rule, the
salary levels for the long duties tests were $155 for executive and
administrative employees and $170 for professional employees, while a
full-time employee working 40 hours per week at the federal minimum
wage ($5.15 per hour) earned $206 per week. See 69 FR 22164. Even the
short test salary level at $250 per week was not far above the minimum
wage.
The Department in the 2004 Final Rule based the new ``standard''
duties tests on the short duties tests (which did not limit the amount
of nonexempt work that could be performed), and tied them to a single
salary test level that was updated from the long test salary (which
historically had been paired with a cap on nonexempt work). See 69 FR
22164, 22168-69; see also 68 FR 15570 (``Under the proposal, the
minimum salary level to qualify for exemption from the FLSA minimum
wage and overtime requirements as an executive, administrative, or
professional employee would be increased from $155 per week to $425 per
week. This salary level would be referred to as the `standard test,'
thus eliminating the `short test' and `long test' terminology.''). The
Department concluded that it would be burdensome to require employers
to comply with a more complicated long duties test given that the
passage of time had rendered the long test salary level largely
obsolete. See 69 FR 22164; 68 FR 15564-65. The Department stated at the
time that the new standard test salary level accounted for the
elimination of the long duties test. See 69 FR 22167.
In determining the new salary level in 2004, the Department
reaffirmed our oft-repeated position that the salary level is the
``best single test'' of exempt status. See 69 FR 22165. Consistent with
prior rulemakings, the Department relied on actual earnings data.
However, instead of using salary data gathered from WHD investigations,
as was done under the Kantor method, the Department used Current
Population Survey (CPS) data that encompassed most salaried employees.
The Department also set the salary level to exclude roughly the bottom
20 percent of these salaried employees in each of the subpopulations:
(1) The South and (2) the retail industry. Thus in setting the standard
salary level, the Department was consistent with our previous practice
of setting the long test salary level near the lower end of the current
range of salaries. Although prior long test salary levels were based on
salaries of approximately the lowest 10 percent of exempt salaried
employees in low-wage regions and industries (the Kantor long test
method), the Department stated that the change in methodology was
warranted in part to account for the elimination of the short and long
duties tests, and because the utilized data sample included nonexempt
salaried employees, as opposed to only exempt salaried employees.
However, as the Department acknowledged, the salary arrived at by this
method was, in fact, equivalent to the salary derived from the Kantor
long test method. See 69 FR 22168. Based on the adopted methodology,
the Department ultimately set the salary level for the new standard
test at $455 per week.
In summary, the regulatory history reveals a common methodology
used, with some variations, to determine appropriate salary levels. In
almost every case, the Department examined a broad set of data on
actual wages paid to salaried employees and then set the long test
salary level at an amount slightly lower than might be indicated by the
data. In 1940 and 1949, the Department set the long test salary levels
by looking to the average salary paid to the lowest level of exempt
employees. Beginning in 1958, the Department set the long test salary
levels to exclude approximately the lowest-paid 10 percent of exempt
salaried employees in low-wage regions, employment size groups, city
sizes, and industry sectors, and we followed a similar methodology in
1963 and 1970. The levels were based on salaries in low-wage categories
in order to protect the ability of employers in those areas and
industries to utilize the exemptions and in order to mitigate the
impact of salaries in higher-paid regions and sectors. In 1975, the
Department increased the long test salary levels based on changes in
the CPI, adjusting downward to eliminate any potential inflationary
impact. See 40 FR 7091 (``However, in order to eliminate any
inflationary impact, the interim rates hereinafter specified are set at
a level slightly below the rates based on the CPI.''). In each of these
rulemakings, the Department set the short test salary level in relation
to, and significantly higher than, the long test salary levels (ranging
from approximately 130 to 180 percent of the long test salary levels).
In 2004, the Department eliminated the short and long duties tests
in favor of a standard duties test (that was similar to the prior less
rigorous short test) for each exemption and a single salary level for
executive, administrative, and professional employees. This most recent
revision established a standard salary level of $455 per week using
earnings data of full-time salaried employees (both exempt and
nonexempt) in the South and in the retail sector. As in the past, the
Department used lower-salary data sets to accommodate those businesses
for which salaries were generally lower due to geographic or industry-
specific reasons.
ii. Standard Salary Level Proposal
To restore the effectiveness of the salary test, in the NPRM the
Department proposed to set the standard salary level equal to the 40th
percentile of weekly earnings of full-time salaried workers nationally.
Using salary data from 2013, the proposed methodology resulted in a
standard salary level of $921 per week, or $47,892 annually. The
Department estimated that, by the time of publication of a Final Rule,
the proposed methodology would result in a standard salary level of
approximately $970 per week, or $50,440 annually.
In proposing to update the salary threshold, the Department sought
to reflect increases in actual salary levels nationwide since 2004. As
the Department explained in the NPRM, when left at the same amount over
time, the effectiveness of the salary level test as a means of
determining exempt status diminishes as the wages of employees entitled
to overtime increase and the real value of the salary threshold falls.
See 80 FR 38517.
The Department also sought to adjust the salary level to address
our conclusion that the salary level we set in 2004 was too low given
the Department's elimination of the more rigorous long duties test. As
discussed above, for many decades the long duties test--which limited
the amount of time an exempt employee could spend on nonexempt duties
and was paired with a lower salary level--existed in tandem
[[Page 32404]]
with a short duties test--which did not contain a specific limit on the
amount of nonexempt work and was paired with a salary level that was
approximately 130 to 180 percent of the long test salary level. In
2004, the Department eliminated the long and short duties tests and
created the new standard duties test, based on the short duties test.
The creation of a single standard test that did not limit nonexempt
work caused new uncertainty as to what salary level is sufficient to
ensure that employees intended to be overtime-protected are not subject
to inappropriate classification as not overtime-protected, while
minimizing the number of employees disqualified from the exemption even
though their primary duty is EAP exempt work. As the Department had
observed in 1975, if the salary level associated with such a test is
too low, employers may use it to inappropriately classify as exempt
employees who would not meet the more rigorous long duties test. 40 FR
7092 (``[T]here are indications that certain employers are utilizing
the high salary test to employ otherwise nonexempt employees (i.e.,
those who perform work in excess of the 20 percent tolerance for
nonexempt work or the 40 percent tolerance allowed in the case of
executive and administrative employees in retail and service
establishments) for excessively long workweeks.''). Rather than pair
the standard duties test with a salary level based on the higher short
test salary level, however, we tied the new standard duties test to a
salary level based on the long duties test. This resulted in a standard
salary level that, even in 2004, was too low to effectively screen out
from the exemption overtime-eligible white collar employees.
The importance of ensuring that the standard duties test is not
paired with too low of a salary level is illustrated by the
Department's Burger King litigation in the early 1980's, when the short
and long tests were still actively in use. The Department brought two
actions arguing that Burger King assistant managers were entitled to
overtime protection. Sec'y of Labor v. Burger King Corp., 675 F.2d 516
(2d Cir. 1982); Sec'y of Labor v. Burger King Corp., 672 F.2d 221 (1st
Cir. 1982). One group of assistant managers satisfied the higher short
test salary level and was therefore subject to the less rigorous short
duties test; the other group was paid less and was therefore subject to
the long duties test with its limit on nonexempt work. All of the
assistant managers performed the same duties, which included spending
significant amounts of time performing the same routine, nonexempt work
as their subordinates. Both appellate courts found that the higher paid
employees were not overtime protected--even though they performed
substantial amounts of nonexempt work--because they satisfied the short
duties test. The lower paid employees, however, were overtime-protected
by application of the more rigorous long duties test. If the long
test's lower salary threshold had been paired with a duties test that
did not limit nonexempt work--as the Department did in 2004--the lower
paid assistant managers would have also lost overtime protection.
In this rulemaking, the Department sought to correct the mismatch
between the standard salary level (based on the old long test) and the
standard duties test (based on the old short test). As we noted in the
NPRM, we are concerned that at the current low salary level employees
in lower-level management positions who would have failed the long
duties test may be inappropriately classified as ineligible for
overtime. At the same time, the Department proposed a lower salary
level than the average salary traditionally used for the short duties
test in order to minimize the potential that bona fide EAP employees,
especially in low-wage regions and industries, might become overtime-
protected because they fall below the proposed salary level. As the
Department explained, an up-to-date and effective salary level protects
against the misclassification of overtime-eligible workers as exempt
and simplifies application of the exemption for employers and employees
alike.
Consistent with prior rulemakings, the Department reached the
proposed salary level after considering available data on actual salary
levels currently being paid in the economy. Specifically, as we did in
2004, the Department used CPS data comprising full-time nonhourly
employees to determine the proposed salary level. Unlike in the 2004
rulemaking, however, the Department did not further restrict the data
by filtering out various employees based on statutory and regulatory
exclusions from FLSA coverage or the salary requirement (such as
federal employees, doctors, lawyers, and teachers).
The Department proposed to set the salary level as a percentile
rooted in the distribution of earnings rather than a specific dollar
amount. Because earnings are linked to the type of work salaried
workers perform, a percentile serves as an appropriate proxy for
distinguishing between overtime-eligible and overtime exempt white
collar workers. Based on the historical relationship of the short test
salary level to the long test salary level, the Department determined
that a salary between approximately the 35th and 55th percentiles of
weekly earnings of full-time salaried workers nationwide would work
appropriately with the standard duties test. The Department proposed to
set the salary level at the low end of this range--the 40th percentile
of weekly earnings of full-time salaried workers nationally--to account
for low-wage regions and industries and for the fact that employers no
longer have a long duties test to fall back on for purposes of
exempting lower-salaried workers performing bona fide EAP duties. The
Department explained, however, that a standard salary threshold
significantly below the 40th percentile would require a more rigorous
duties test than the current standard duties test in order to
effectively distinguish between white collar employees who are overtime
protected and those who may be bona fide EAP employees. See 80 FR
38519, 38532, 38543.
iii. Final Revisions to the Standard Salary Level
The Final Rule adopts the proposed methodology for setting the
standard salary level as a percentile of actual salaries currently
being paid to full-time nonhourly employees, as reported by BLS based
on data obtained from the CPS. However, we have adjusted the data set
used in response to a substantial number of comments asserting that the
salary level proposed would render overtime-eligible too many bona fide
EAP employees in low-wage areas. Rather than set the salary level at
the 40th percentile of weekly earnings of full-time salaried workers
nationally, this Final Rule sets the salary level at the 40th
percentile of weekly earnings of full-time salaried workers in the
lowest-wage Census Region. Census Regions are groupings of states and
the District of Columbia that subdivide the United States for the
presentation of data by the United States Census Bureau. The current
Census Regions are: The Northeast, the Midwest, the South, and the
West.\26\ The Department determined the ``lowest-wage Census Region''
by examining the 40th percentile of weekly earnings of full-time
salaried workers based on CPS data in each region. For the purposes of
this rulemaking, we define the ``lowest-wage Census Region'' as the
Census Region having the lowest
[[Page 32405]]
40th percentile of weekly earnings of full-time salaried workers, which
currently is the South.\27\
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\26\ See https://www.census.gov/geo/reference/gtc/gtc_census_divreg.html.
\27\ For simplicity, in this rulemaking we refer to the lowest-
wage Census Region and the South interchangeably.
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In keeping with our practice, the Department relies on the most up-
to-date data available to derive the final salary level from this
methodology. See 69 FR 22168. In the NPRM, the Department utilized 2013
salary data for estimating the salary level resulting from the proposed
methodology, which was current at the time the Department developed the
proposal. In this Final Rule, we rely on salary data from the fourth
quarter of 2015, as published by BLS, to set the salary level.\28\
Using this data, the Department has determined that the required
standard salary level will be $913 per week, or $47,476 annually, based
on the 40th percentile of weekly earnings of full-time salaried workers
in the South. The $913 salary level that results from the methodology
is at the low end of the historical range of short test salary levels,
based on the historical ratios between the short and long test salary
levels ($889-$1231). See section VI.C.iii.
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\28\ BLS currently publishes this data at: http://www.bls.gov/cps/research_series_earnings_nonhourly_workers.htm.
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White collar employees subject to the salary level test earning
less than $913 per week will not qualify for the EAP exemption, and
therefore will be eligible for overtime, irrespective of their job
duties and responsibilities. Employees earning this amount or more on a
salary or fee basis will qualify for exemption only if they meet the
standard duties test, which is unchanged by this Final Rule. As a
result of this increase, 4.2 million employees who meet the standard
duties test will no longer fall within the EAP exemption and therefore
will be overtime-protected. Additionally, 8.9 million employees paid
between $455 and $913 per week who do not meet the standard duties
test--5.7 million salaried white collar employees and 3.2 million
salaried blue collar employees--will now face a lower risk of
misclassification.
iv. Discussion of Comments
1. Proposed Increase in the Standard Salary Level
The overwhelming majority of commenters agreed that the standard
salary level needs to be increased, including many commenters writing
on behalf of employers, such as the Business Roundtable, Catholic
Charities USA, College and University Professional Association for
Human Resources (CUPA-HR), CVS Health, the National Restaurant
Association (NRA), and the Northeastern Retail Lumber Association.
Multiple commenters echoed the Department's observation in the NPRM
that the current standard salary level of $455 per week, or $23,660
annually, is below the 2014 poverty threshold for a family of four.\29\
The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) pointed out that the current salary level is
only slightly higher than the state minimum wage for forty hours of
work in several states, and noted that it has long been widely
recognized that workers whose pay is ``close to the minimum wage'' are
``not the kind of employees Congress intended to deny overtime
protection'' (citing Stein Report at 5). Some salaried employees
currently classified as exempt managers commented that they earn less
per hour than the employees they supervise.
---------------------------------------------------------------------------
\29\ The 2015 poverty threshold for a family of four with two
related people under 18 in the household is $24,036. Available at:
http://www.census.gov/hhes/www/poverty/data/threshld/index.html.
---------------------------------------------------------------------------
The Department also received multiple comments, including comments
from the American Sustainable Business Council and the Heartland
Alliance for Human Needs and Human Rights, expressing concern that the
current salary level facilitates the misclassification of overtime-
eligible employees as overtime exempt. The RAND Corporation submitted a
study estimating that 11.5 percent of salaried workers are
misclassified as exempt--and therefore do not receive overtime
compensation--even though their primary duty is not exempt work or they
earn less than the current salary level, while a human resource
professional from Florida ``estimate[d] that 40 percent of those
employees my clients class[ify] as . . . exempt are really non-
exempt.''
A few commenters, however, such as the National Grocers Association
(NGA), urged the Department to maintain the current salary level of
$455 per week. For example, the National Lumber and Building Material
Dealers Association stated that the current salary level is appropriate
for managers in many sectors and regions. Mutual of Omaha requested
that the Department create a ``grandfathered exemption,'' by applying
the current salary level to currently exempt employees.
The Department received a significant number of comments in
response to our proposal to set the standard salary level equal to the
40th percentile of weekly earnings of full-time salaried employees
nationally (estimated to be $970 per week, or $50,440 per year, in
2016). Many commenters endorsed the proposed salary level as an
appropriate dividing line between employees performing exempt and
overtime-protected work, but others objected that it was either too low
or too high. The majority of employees and commenters representing
employees believed the proposed salary level amount was appropriate or
should be increased, while the majority of employers and commenters
representing them believed the salary level amount should be lower than
the threshold the Department proposed.
A large number of commenters supported the proposed salary level
either by explicitly endorsing the proposed increase or supporting the
Department's proposed rule generally. Commenters who supported the
salary level included thousands of individual employees, writing
independently or as part of comment campaigns, and organizations
representing employees (such as the American Association of Retired
Persons (AARP), the Coalition of Labor Union Women, National Council of
La Raza, the National Domestic Workers Alliance (NDWA), the National
Partnership for Women & Families (Partnership), Service Employees
International Union (SEIU), the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union (USW), and many others). Some employers and human
resource professionals also supported the proposed increase. For
example, the owner of a hardware store in Minneapolis explained that he
had observed ``large businesses abuse their employees for many years by
misclassifying them as exempt from overtime,'' and stated that the
Department's proposal would ``help bring things back in line.'' H-E-B
stated that it pays ``competitive wages,'' and is ``supportive of
doubling the minimum salary threshold to the proposed amount of
$50,400,'' although it urged the Department to consider making regional
adjustments because other retailers pay lower wages based on geographic
differences. Some Members of Congress expressed support for the
Department's proposal, although other Members of Congress opposed it.
The Department received many comments from those who endorsed the
proposal (as well as those seeking a higher salary level) asserting
that a significant increase to the current salary level is necessary to
effectuate Congress' intent to extend the FLSA's wage and hour
protections broadly to most workers in the United States. See, e.g.,
[[Page 32406]]
Comment from 57 labor law professors; AFL-CIO; Equal Justice Center;
National Employment Lawyers Association (NELA); Nichols Kaster law
firm; SEIU. AFL-CIO stated that Congress intended the EAP exemptions to
apply only to employees who have sufficient bargaining power such that
they do not need the Act's protections against overwork and who perform
work that cannot be easily spread to other workers. AFL-CIO and the EPI
further stated that Congress knew from experience with Depression-era
worker protection legislation that employers sometimes misclassified
ordinary workers as managers to evade paying overtime premiums, and as
a result, exempted only ``bona fide'' executive, administrative, and
professional employees. The National Employment Law Project (NELP)
commented that the Department set the salary level too low in 2004,
especially when paired with a more lenient duties test than the prior
long duties test. A comment submitted on behalf of 57 labor law
professors noted that, even if the Department had paired the $455 per
week standard salary level set in 2004 with a more rigorous duties
test, it was still lower than necessary to achieve a threshold
equivalent to the inflation-adjusted amount of the 1975 long test
salary level.
The Department agrees with commenters that a significant increase
in the salary threshold is required to ensure the FLSA's overtime
protections are fully implemented. The salary level test should provide
an ``index to the `bona fide' character of the employment for which
exemption is claimed'' and ensure that the EAP exemption ``will not
invite evasion'' of the FLSA's minimum wage and overtime requirements
``for large numbers of workers to whom the wage-and-hour provisions
should apply.'' Stein Report at 19. The current salary level, however,
is less than the 10th percentile of weekly earnings of full-time
salaried workers both nationally and in the South. The salary
threshold's function in differentiating exempt from nonexempt employees
takes on greater importance, moreover, when there is only one standard
duties test that has no limitation on the amount of nonexempt work that
an exempt employee may perform, as has been the case since 2004. As the
Department has long recognized, if too low a salary level accompanies a
duties test that does not limit nonexempt work, employers may utilize
the salary test to employ ``otherwise nonexempt employees,'' who
perform large amounts of nonexempt work, ``for excessively long
workweeks.'' 40 FR 7092. The Department believes that the effect of the
2004 Final Rule's pairing of a standard duties test based on the short
duties test (for higher paid employees) with a salary test based on the
long test (for lower paid employees) was to exempt from overtime many
lower paid workers who performed little EAP work and whose work was
otherwise indistinguishable from their overtime-eligible
colleagues.\30\ This has resulted in the inappropriate classification
of employees as EAP exempt who pass the standard duties test but would
have failed the long duties test. A significant increase from the 2004
threshold is therefore necessary, not only to account for the declining
real value of the salary threshold, but also to correct for the fact
that the Department set the standard salary level in 2004 without
adjusting for the elimination of the more rigorous long duties test.
---------------------------------------------------------------------------
\30\ Jobs With Justice illustrated this phenomenon in its
comment by recounting the experience of a store manager who was
classified as exempt even though she made only $34,700 per year and
regularly worked 70 hours per week, spending her time performing
routine tasks such as ``unloading merchandise from trucks, stocking
shelves and ringing up purchases.'' See also In re Family Dollar
FLSA Litigation, 637 F.3d 508, 511, 516-18 (4th Cir. 2011) (holding
that a retail manager paid $655 per week plus bonus was an exempt
executive even though she ``devoted most of her time to doing . . .
mundane physical activities'' such as unloading freight, stocking
shelves, working the cash register, or sweeping the floors); Soehnle
v. Hess Corp., 399 Fed. App'x 749, 750 (3d Cir. 2010) (holding that
a gas station manager who was paid an annual salary of $34,000,
worked approximately 70 hours per week, and spent 85 percent of time
operating a cash register was an exempt executive).
---------------------------------------------------------------------------
Many commenters (including some that believe that the proposed
salary level is reasonable) urged the Department to choose a method
that results in a higher salary level. The vast majority of these
commenters, including NELA, Nichols Kaster, the Rudy, Exelrod, Zieff &
Lowe law firm, the Texas Employment Lawyers Association, and the United
Food and Commercial Workers International Union (UFCW), asserted that
the Department should set the standard salary level equal to the 50th
percentile of earnings of full-time salaried workers nationally. The
Center for Effective Government stated that the Department should set
the standard salary level equal to the 60th percentile of earnings of
full-time salaried workers nationally. NELP recommended that the
Department adjust for inflation the short test salary level adopted by
the Department in 1975, or in the alternative, adopt a threshold of
$1,122 per week.
Commenters, such as the UFCW, pointed out that the Department's
proposed salary is lower than the average historical salary ratio
associated with the short duties test, which is the basis for the
standard duties test. Multiple commenters noted that the proposed
salary level covers a smaller share of all salaried workers (40
percent) than the 1975 short test salary level, which covered 62
percent of full-time salaried employees. See, e.g., AFL-CIO; NELA;
Rudy, Exelrod, Zieff & Lowe. NELA stated that the 1975 short test
salary level was 1.57 times the median wage of all full-time wage and
salary workers, a ratio which they asserted would result in a current
salary threshold of over $65,000 per year based on first quarter 2015
data. EPI commented that the proposed salary level is lower than the
short test salary levels adopted by the Department in the 1960s and
1970s, when adjusted for inflation to 2013 dollars. EPI also asserted
that the salary threshold should be higher than the inflation-adjusted
amounts of short test salary levels from the past in part to account
for the fact that management and professional salaries grew faster than
the rate of inflation after 1970, noting that CEO pay among the top 350
U.S. corporations was almost 11 times higher in 2014 than it was in
1978, after adjusting for inflation. Other commenters, including USW,
similarly cited the large growth in high-level executive pay in recent
decades in support of the Department's proposal.
Commenters urging a higher salary level also asserted that the
Department's proposed salary level excludes from overtime protection
too large a percentage of employees in traditionally nonexempt
occupations and is too low to adequately minimize the risk of
inappropriately classifying overtime-eligible workers as overtime
exempt. AFL-CIO stated that the Department has previously set the long
test salary level at an amount about 25 percent higher than the average
starting salary for newly hired college graduates, and they asserted
that this would yield a standard salary level of $52,000 per year. AFL-
CIO contended that the salary test must be set at a ``high enough level
that large numbers of eligible workers are not stranded above the
threshold.'' NELA likewise urged the Department to ``aim for a
threshold where the number of non-exempt employees earning salaries
above the threshold equals the number of otherwise exempt employees
earning less than the threshold''--an amount we estimated in the NPRM
would be roughly equal to the 50th percentile of
[[Page 32407]]
weekly earnings of full-time salaried workers nationally. See 80 FR
38560.
The Department understands commenters' concerns that the proposed
standard salary level was lower than the 50th percentile of full-time
salaried workers ($1,065 based on 2013 data) and updating the 1975
short test salary ($1,083 based on 2013 data). As the Department stated
in the NPRM, however, we are concerned that a standard salary threshold
at that level, in the absence of a lower salary long test to fall back
on, would deny employers the ability to use the exemption for too many
employees in low-wage areas and industries who perform EAP duties.
In contrast to commenters representing employees, a great number of
commenters representing employers and many individual employers
objected that the Department's proposed salary level was too high.
While commenters supporting the proposed threshold or advocating for a
higher threshold asserted that the proposal is lower than indicated by
historical short test levels, commenters advocating for a lower
threshold asserted that the proposed threshold is out of step with
historical long test levels. For example, the Jackson Lewis law firm
asserted that the proposed threshold is higher than any past long test
salary level for the executive exemption, when adjusted for inflation
to 2015 dollars. The Chamber stated that the ratio of the proposed
salary level to the minimum wage is too high, based on an analysis they
performed that weighted the historic long test salary levels three
times more heavily than historic short test salary levels.
Some commenters requesting a lower salary threshold, such as the
American Association of Orthopaedic Executives, Associated Builders and
Contractors (ABC), and the Montana Conservation Corps, urged the
Department to instead adjust the 2004 salary level for inflation. Many
others stated that the Department should set the salary level at the
20th percentile of earnings of full-time salaried employees in the
South and in the retail industry, as we did in 2004. See, e.g.,
American Hotel and Lodging Association (AH&LA); Dollar Tree; NRF. The
NRA stated that it could support Alternative 3 in the NPRM, a salary
level derived from the Kantor long test method taking the 10th
percentile of earnings of likely exempt employees in low-wage regions,
employment size groups, city sizes, and industries. Fisher & Phillips
urged the Department to set the salary level at the 20th percentile of
earnings of exempt employee salaries ``in the lowest geographical and
industry sectors.'' Some commenters suggested a lower percentile of
full-time salaried workers nationwide than the Department proposed. For
example, the Chamber, which preferred that the Department use a
different data source set to set the salary level, stated in the
alternative that a salary level at up to the 30th percentile of
earnings of full-time salaried workers nationally would ``better
reflect the actual dividing line between exempt and non-exempt
employees.'' In addition, several commenters focused on the salary
level amount rather than, or in addition to, the methodology used to
derive the level. For example, a non-profit organization providing
senior care recommended a salary level of up to $40,000; FMI stated
that most of its grocer members would not see a significant disruption
at a salary level of up to $38,376; and the BOK Financial Corporation
advocated for a $30,000 salary level. Finally, some commenters, such as
the Partnership to Protect Workplace Opportunity (PPWO) and IFA,
asserted that the Department's proposed salary level should be lower,
but declined to propose a specific number or method. Most of these
suggestions do not represent a meaningful departure from the
methodology the Department has historically used to set the lower long
test salary level, and the Department does not believe that these
suggested salary levels are sufficient to account fully for the
elimination of the long duties test, as explained below.
The Department received many comments stating that by using a
nationwide data set, the proposal fails to adequately account for
salary disparities among regions and areas, industries, and firms of
different sizes. Some commenters, including the Assisted Living
Federation of America and the American Seniors Housing Association
(ALFA), Jackson Lewis, and PPWO, asserted that adopting the proposal
would effectively eliminate the exemption for certain industries or in
certain parts of the country and, as a result, would exceed the
Department's statutory authority.
Multiple commenters asserted that the proposed salary level is too
high for low-wage regions. See, e.g., Chamber; FMI; International
Association of Amusement Parks and Attractions; King's Daughters'
School; NRF; PPWO; Society for Human Resource Management (SHRM); and
many individual commenters. Several commenters cited to an analysis
conducted by Oxford Economics finding that in eight southern states--
Arkansas, Florida, Louisiana, Mississippi, North Carolina, Oklahoma,
Tennessee, and West Virginia--more than 50 percent of nonhourly workers
earn less than $970 per week, the amount the Department predicted the
proposed salary level would be in 2016. PPWO cited to a study showing
that 100 percent of first-line supervisors of food preparation and
serving workers in Mississippi--an occupational category for which the
Department predicted 10 to 50 percent of workers would likely pass the
duties test when we quantified the impact of our proposal \31\--would
fall below the proposed salary level. The National Association of Home
Builders (NAHB) analyzed state-level data and found that 50 percent or
more of first line construction supervisors in Arkansas, Mississippi,
New Mexico, and Tennessee would be affected by the Department's
proposal. The National Network to End Domestic Violence commented that
for one of its member organizations in a rural state, nine out of
eleven staff members earn less than the proposed salary level, and a
lender with locations across Alabama, Louisiana, Mississippi, and
Tennessee stated that 81 percent (62 out of 74) of its branch managers
earn less than $51,000 per year in base salary. Some commenters, for
example, the HR Policy Association and National Association of
Manufacturers (NAM), expressed concern that employees performing the
same duties will be exempt in one location but overtime protected in
another.
---------------------------------------------------------------------------
\31\ See Table A2--Probability Codes by Occupation, 80 FR 38594;
see also 80 FR 38553-54.
---------------------------------------------------------------------------
In addition to these comments, multiple commenters noted that
salaries may vary widely within a state or region, especially between
rural or smaller communities and urban areas. Several commenters,
including Columbia County, Pennsylvania, Community Transportation
Association of the Northwest, Elk Valley Rancheria Indian Tribe,
Jackson Lewis, the Jamestown S'Klallam Tribe, the National Board for
Certified Counselors, the National Newspaper Association, NRF, and the
Northern Michigan Chamber Alliance, commented that the proposed salary
level is too high for rural areas and small communities. HR Policy
Association stated that 14 percent of chief executives and 32 percent
of general and operations managers in small cities and rural areas earn
less than the salary level calculated using the proposed methodology
and 2014 data. Commenters also compared earnings and the cost of living
in lower-wage communities to very high wage urban areas and asserted
that the
[[Page 32408]]
Department's proposal fails to fully analyze and take into account
these differences. See, e.g., America Outdoors (comparing rural areas
to Washington, DC, New York City, and San Francisco); Ashley Manor LLC;
National Pest Management Association.
Several commenters also asserted that the proposed salary level
($50,440 based on projections for 2016) would have a disproportionate
impact on employers in low-wage industries, such as the retail and
restaurant industries. HR Policy Association stated that in the retail,
accommodation, and food services and drinking places industries, over
one-third of general and operations managers would fall below the
proposed salary level in 2014 dollars. FMI stated that ``millions of
employees in retail who clearly meet the duties requirements for retail
earn below $50,000.'' NRA cited a 2014 survey finding that the median
base salary paid to restaurant managers is $47,000 and to crew and
shift supervisors is $38,000, and multiple chain restaurant businesses
submitted comments stating that if the Department increased the salary
level to our proposed threshold and updated it annually, ``there might
be no exempt employees in many of our restaurants.''
The Department also heard from multiple commenters, such as IFA,
the National Federation of Independent Businesses (NFIB), NGA, the
National Independent Automobile Dealers Association, the National
Newspaper Association, Senator David Vitter, and Representative James
Inhofe, that our proposal would have a disproportionate impact on small
businesses. The Office of Advocacy of the United States Small Business
Administration (Advocacy) stated that the proposed salary threshold
would ``add significant compliance costs . . . . on small entities,
particularly to businesses in low-wage regions and in industries that
operate with low profit margins.''
Several commenters, including the Chamber, Littler Mendelson,
Fisher & Phillips, and the Seyfarth Shaw law firm, noted that the
Department has historically adjusted the salary level to account for
low-wage regions and industries and small establishments, and asserted
that the Department failed to do so in this rulemaking. These and other
commenters urged the Department to account for such variations by
setting the salary level at a point near the lower range of salaries in
the lowest-wage regions or industries. For example, among other
alternatives, the Chamber asked the Department to consider setting the
salary level at the 40th percentile of earnings of full-time salaried
employees in Louisiana, Mississippi, and Oklahoma ($784 per week or
$40,786 annually), which it described as the three states with the
lowest salaries. Many other commenters, including the International
Bancshares Corporation, the National Association of Federal Credit
Unions, the National Council of Young Men's Christian Associations of
the United States of America (YMCA), and many individual commenters,
urged the Department to adopt different salary levels for different
regions of the country or for different industries or sizes of
businesses.
Commenters representing employee interests, however, disagreed that
the Department should make further adjustment for low-wage regions and
industries. EPI commented that because the Department's proposed
standard salary level falls within historic short test levels, the
Department's earlier adjustments to account for regional wage
disparities are ``baked in.'' See also AFL-CIO. This is because the
Department historically set the short test level as a function of a
long test level, which had been adjusted to reflect low-wage regions
and industries. UFCW similarly asserted that the Department should not
have proposed a salary threshold lower than the average short test
salary level to account for low-wage regions and industries, because
the data from which the Department drew the percentile includes the
earnings of employees in low-wage industries and regions. In addition,
AFL-CIO and EPI stated that the Department should be less concerned
about the impact of regional wage variation than in prior rulemakings.
According to an analysis conducted by EPI, over the past four decades,
wages in lower-wage states have ``moved much closer to national
norms.''
The Department has considered these comments and appreciates the
strong views in this area. While our proposal did account for lower
salaries in some regions and industries by setting the salary level
lower than both the average historical salary ratio associated with the
short duties test ($1,019 per week according to the data set used in
the Final Rule) and the median of full-time salaried workers ($1,146
according to the data set used in the Final Rule), we have determined
that further adjustment to account for regional variation is warranted.
The proposed salary level ($972 based on the fourth quarter 2015 data)
is in the lowest quarter of the historical range of the short test
salary, but it is not at the bottom of the range, and based on the
comments, we are concerned that this salary would not sufficiently
account for regional variation in wages. Accordingly, we have adjusted
the data set used to set the salary level to further reflect salary
disparities in low-wage areas. Under this Final Rule, the Department
will set the standard salary level equal to the 40th percentile of
weekly earnings of full-time salaried workers in the lowest-wage Census
Region. Based on fourth quarter 2015 data, the lowest-wage Census
Region is the South, and the 40th percentile of weekly earnings of
full-time salaried workers in the South is $913.\32\ See Table B. By
comparison, the 40th percentile nationally is $972, and the 40th
percentile in the highest-wage Census Region (the West) is $1,050.
---------------------------------------------------------------------------
\32\ The South Census Region includes Alabama, Arkansas,
Delaware, the District of Columbia, Georgia, Florida, Kentucky,
Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South
Carolina, Tennessee, Texas, Virginia, and West Virginia.
Table B--40th percentile of Earnings for Full-Time Salaried Workers by
Census Region
------------------------------------------------------------------------
40th percentile
of earnings of
full-time
Census region salaried workers
(in 4th quarter
2015)
------------------------------------------------------------------------
South................................................ $913
Midwest.............................................. 994
Northeast............................................ 1,036
West................................................. 1,050
All Census Regions................................... 972
------------------------------------------------------------------------
This adjustment will ensure that the salary level ``is practicable
over the broadest possible range of industries, business sizes and
geographic regions.'' 69 FR 22171 (citing Kantor Report at 5). Setting
the salary level equal to the weekly earnings of the 40th percentile of
full-time salaried workers in the lowest-wage Census Region represents
the 22nd percentile of likely exempt employees in the South, the 19th
percentile of likely exempt employees in the Midwest, and the 16th
percentile of likely exempt employees in both the West and the
Northeast.\33\ The 40th percentile of full-time salaried workers in the
South also represents the 20th percentile of likely exempt employees
working in small establishments and the 28th percentile of likely
exempt employees who do not live in
[[Page 32409]]
metropolitan areas.\34\ This increase from the traditional 10 percent
of exempt employees excluded by the Kantor long test method reflects
the shift to a salary level appropriate to the standard duties test.
Because the long duties test included a limit on the amount of
nonexempt work that could be performed, it could be paired with a low
salary that excluded few employees performing EAP duties. In the
absence of such a limitation in the duties test, it is necessary to set
the salary level higher (resulting in the exclusion of more employees
performing EAP duties) because the salary level must perform more of
the screening function previously performed by the long duties test.
Accordingly the salary level set in this Final Rule corrects for the
mismatch in the 2004 Final Rule between a low salary threshold and a
less rigorous duties test.
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\33\ The population for determining employees who are likely
exempt under the standard duties test is limited to potentially
affected EAP workers (i.e., white collar, salaried, not eligible for
another non-EAP overtime exemption, and not in a named occupation)
earning at least $455 but less than $913.
\34\ The Department does not know which employees work for small
businesses and therefore randomly assigns workers to small
businesses. The number of likely exempt employees who do not live in
metropolitan areas is based on employees who do not live in a
Metropolitan Statistical Area.
---------------------------------------------------------------------------
The decrease in the salary level due to the change to the lowest-
wage region data set addresses commenters' concerns that the salary
test would eliminate the exemption for certain industries or certain
parts of the country. For example, while PPWO asserted that the
proposed salary level would have excluded from the exemption all first
line supervisors of food preparation and service workers in
Mississippi, the revised salary level adopted in this Final Rule
excludes only 78 percent of these workers. This leaves 22 percent of
such workers covered by the exemption in Mississippi--appropriately
within the 10 to 50 percent of employees in this occupation nationwide
predicted to pass the standard duties test under the Department's
probability codes. See section VI Appendix A. Likewise, 55 percent of
first line supervisors of construction trades and extraction workers in
the South earn above the Final Rule's salary threshold, even though
only 0 to 10 percent of such workers nationwide are likely to pass the
standard duties test. Id. The revised salary is approximately
equivalent to the 2014 median base salary paid to restaurant managers
cited by NRA.
Setting the salary level equal to the 40th percentile of earnings
of full-time salaried workers in the lowest-wage Census Region is
consistent with the Department's historical practice of examining a
broad set of data on actual wages paid to salaried employees and then
setting the salary level at an amount slightly lower than might be
indicated by the data. In addition, this method is consistent with our
previous practice of examining data broken out by geographic area in
setting the salary level. The Final Rule methodology also benefits from
continuity with our 2004 methodology, in which we set the salary level
equal to a percentile of the earnings of full-time salaried workers in
the South. Finally, the approach adopted in this Final Rule fulfills
the Department's goals of making the salary methodology simpler and
more transparent. See 80 FR 38527.
The Department believes that the standard salary level set in this
Final Rule will appropriately distinguish between those who likely are
bona fide EAP employees and those who likely are not, when paired with
the current duties test and will not require a return to a limit on the
performance of nonexempt work. The Final Rule salary level, like the
Department's proposed salary threshold, exceeds the inflation-adjusted
2004 salary level and the levels suggested by the Kantor long test and
2004 methods (all of which were based on the lower long test salary),
but is at the low end of the historical range of short test salary
levels, based on the historical ratios between the short and long test
salary levels. A substantially higher standard salary threshold, such
as the levels advocated by some commenters representing employees,
would fail to account for the absence of a long test, which
historically allowed employers to claim the exemption at a lower salary
level for employees who satisfy a more restrictive duties test. This is
particularly true given that the salary threshold will apply
nationwide, including in low-wage regions and low-wage industries. In
the NPRM, the Department considered setting the standard salary equal
to the 50th percentile of earnings of full-time salaried workers
nationwide ($1,146 per week or $59,592 annually according to the data
set used in this Final Rule); we also considered adjusting the 1975
short test salary level of $250 for inflation ($1,100 per week or
$57,200 annually). We declined to adopt either alternative, however,
due to our belief that the salary level generated through these methods
would result in overtime eligibility for too many employees in low-wage
regions and industries who are bona fide EAP employees. See 80 FR
38534. As discussed above, the Department received a great number of
comments in response to the NPRM that confirm our concern about the
applicability of such a salary level in low-wage regions and
industries. Based on these comments and for the reasons discussed
above, the Department has decided to use a regional data set that
results in a lower standard salary level than the national data set we
proposed in the NPRM.
The Department is mindful that any salary level must adequately
demarcate bona fide EAP employees in higher-wage, as well as lower-wage
areas. As we have previously explained when discussing the salary level
to be paired with the more rigorous long duties test, the threshold
``can be of little help in identifying'' bona fide EAP employees when
``large numbers'' of traditionally nonexempt workers in large cities
earn more than this amount. Weiss Report at 10. By setting the salary
equal to the 40th percentile of salaries in the lowest-wage Census
Region, a higher percentile than we chose in 2004, the Department's
methodology is sufficiently protective of employees in higher-wage
regions and accounts for the fact that the standard salary level will
be paired with a less rigorous standard duties test that does not
specifically limit the amount of nonexempt work that can be performed.
The $913 salary level is within the historical range of short test
salary levels, based on the ratios between the short and long test
salary levels, albeit at the low end of that range. To the extent that
salaries in lower-wage regions have converged with salaries elsewhere
in the country, as some commenters suggested, tying the salary level to
salaries in the lowest-wage Census Region is even less likely to result
in a threshold that is inappropriate for other areas.
The Department believes the Final Rule methodology strikes an
appropriate balance between minimizing the risk of employers
misclassifying overtime-eligible workers as exempt, while reducing the
undue exclusions from exemption of bona fide EAP employees. As the
Department explained in the NPRM, we have long recognized that there
will always be white collar overtime-eligible employees who are paid
above the salary threshold, as well as employees performing EAP duties
who are paid below the salary threshold. Under the Final Rule, 5.7
million white collar employees who fail the standard duties test will
now also fail the salary level test eliminating their risk of
misclassification as exempt. The Department estimates that 732,000 of
these white collar salaried workers are overtime-eligible but their
employers do not recognize them as such. See section VI.C.ii. An
additional 4.2 million employees who meet the standard duties test (but
may not have met the long duties test prior to 2004) will no
[[Page 32410]]
longer qualify for the EAP exemption--and therefore will become
overtime eligible--because they are paid less than the new salary
level. See section VI.C.ii. Although the Department recognizes that an
estimated 6.5 million white collar employees who fail the standard
duties test will still earn at least the new salary level, these
overtime-eligible employees will be protected by the application of the
duties test.
Other measures confirm the appropriateness of the new standard
salary level. The Department has traditionally considered newly hired
college graduates to be overtime eligible and the Final Rule salary
level is slightly higher than the average salary for college graduates
under 25 years old.\35\ See Weiss Report at 19. Setting the salary
level at the 40th percentile of weekly earnings of full-time salaried
workers in the South also places it far enough above the minimum wage
to provide an effective means of screening out workers who should be
overtime protected. Following each update from 1949 to 1975, the ratio
of the short test salary level to the earnings of a full-time,
nonexempt, minimum wage worker equaled between approximately 3.0 and
6.25.\36\ The proposed salary level is 3.15 times full-time minimum
wage earnings ($913/($7.25 x 40)), which is within the historical
range.
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\35\ Several commenters asserting that the Department's proposed
salary level is too high, including the American Council of
Engineering Companies and the American Institute of Certified Public
Accountants, suggested that increasing the salary level could lead
employers to classify recent college graduates or junior employees
as nonexempt. The Department has long recognized that ``college
graduates just starting on their working careers . . . normally have
not achieved bona fide administrative or professional status, nor
are their salaries commensurate with those of fully trained and
experienced professional or administrative employees.'' Weiss Report
at 19.
\36\ The 6.25 ratio is an outlier that was set in December 1949
(when the short test was created) and the minimum wage increased
from $.40 to $.75 per hour one month later (which reduced the ratio
to 3.33). To return to the 6.25 ratio, the weekly salary level would
have to be set at $1,812.50, which is around the 80th percentile of
full-time salaried employees nationally.
---------------------------------------------------------------------------
To the extent that some commenters advocated an even further
downward adjustment to the salary level to account for low-wage regions
and industries, the Department believes that such an adjustment would
not be appropriate given that the Department has decided not to
introduce a specific limitation on the performance of nonexempt work
into the standard duties test. Moreover, we note that the standard
salary level must be practicable in high-wage areas as well as in low-
wage ones. As we have previously stated, the salary threshold ``can be
of little help in identifying'' bona fide EAP employees when ``large
numbers'' of traditionally nonexempt workers in high wage areas earn in
excess of the salary level. Weiss Report at 10. In California and New
York, for example, 69 percent of first-line supervisors in
construction, 51 percent of paralegals and legal assistants, and 31
percent of secretaries and administrative assistants earn $913 or more
per week, despite the fact that the probability of these workers
passing the standard duties test is between 0 to 10 percent. With
respect to commenters who expressed concern that employees performing
the same duties will be exempt in one location and overtime protected
in another, the Department notes that this has always been the case and
may occur at any salary level. Lowering the salary threshold below the
amount set in this Final Rule would result in a salary level that is
inappropriate for traditionally nonexempt workers in high wage areas,
especially when paired with the less rigorous standard duties test.
The $913 salary level adopted in this Final Rule corresponds to the
low end of the historical range of salaries for the short duties test
on which the current standard duties test is based ($889 to $1,231).
The Department considered the possibility of adopting a salary level
equal to the 35th percentile of weekly earnings of full-time salaried
employees in the South, which would yield a salary level of $842 per
week based on fourth quarter 2015 data. However, given that this would
result in a salary level lower than the bottom of the historical range
of short test salary levels, based on the historical ratios between the
short and long test salary levels, the Department determined that
setting the salary level at the 35th percentile of the lowest-wage
Census Region would not work effectively with the standard duties test.
The Department also considered adopting a higher salary level within
the historical range of short test salaries as advocated by many
employee representatives, but we remain concerned about the adverse
effect such a threshold might have on low-wage regions. Accordingly,
the Department has concluded that the 40th percentile of weekly
earnings of full-time salaried workers in the South represents the best
dividing line between employees who are overtime eligible and those who
may not be overtime eligible, when paired with the standard duties
test.
Historically the Department has looked to low-wage industries as
well as low-wage regions in setting the long test salary and, in 2004,
we looked specifically to the retail industry in setting the standard
salary level.\37\ In developing this Final Rule, the Department
examined weekly earnings of full-time salaried employees in the retail
and restaurant industries to determine if adjustment based on these
industries was appropriate. In the retail industry, the 40th percentile
of full-time salaried employees nationally is $848 per week, a salary
below the low end of the historical range of the short test salary
($889) and therefore one that would not work effectively with the
standard duties test. In the restaurant industry (food services and
drinking places), the 40th percentile of full-time salaried employees
nationally is $724 per week. This salary is not only below the low end
of the historical short test range, but also only slightly above the
historical average of the long test salary level
($719).38 39 The Department therefore concluded that setting
the salary level based on wages in these industries would require
significant changes to the standard duties test, which commenters
representing employers overwhelmingly opposed, see, e.g., NRF, NRA,
FMI, and which would be inconsistent with the Department's goal of
simplifying the exemption. The Department believes, moreover, that the
lower salary level yielded by using the lowest-wage Census Region is
appropriate over the range of industries, including low-wage
industries, because it captures differences across regional labor
markets without attempting to adjust to specific industry conditions.
---------------------------------------------------------------------------
\37\ In the past, salaries in low-wage areas and low-wage
industries have been closely aligned, and in 2004 salaries in the
South and in the retail industry were similar. See 69 FR 22168
(``[T]he lowest 20 percent of full-time salaried employees in the
South region earn approximately $450 per week. The lowest 20 percent
of full-time salaried employees in the retail industry earn
approximately $455 per week.''). This historical parity does not
exist at the 40th percentile of workers in the restaurant and retail
industries, and adjusting the salary level further to account for
wages in these industries would require changes to the standard
duties test.
\38\ The Department calculated the historic average of the long
test salary level by averaging the 20 values set for the long test
(executive, administrative, and professional) from 1938 to 1975 in
2015 dollars. The historical average salary level for the long test
is $719.
\39\ The Department notes there are also significant levels of
misclassification of overtime-eligible white collar workers as
exempt in these industries. See section VI.C.ii.
---------------------------------------------------------------------------
With respect to the Chamber's suggestion that the Department limit
the data set to the three lowest-wage states in the South (for which
the 40th percentile of weekly earnings is $784), this methodology
yields a salary level significantly below the historical range of short
test salary levels and for all the reasons discussed above would
[[Page 32411]]
therefore fail to work appropriately with the standard duties test. If
the Department had instead looked to Census divisions, the West South
Central division,\40\ which includes Louisiana and Oklahoma has a 40th
percentile of weekly earnings of full-time salaried workers of $878,
and the East South Central division,\41\ which includes Mississippi,
has a 40th percentile of weekly earnings of full-time salaried workers
of $849. Both of these would also result in a salary level that is
lower than the bottom of the historical short test salary range and
would thus necessitate changes to the duties test. Moreover, the
Department believes that the best practice is to set the salary level
based on an entire region, as we did in 2004, rather than based on a
select and very small subset of states or on a Census division.\42\ The
three Census divisions that make up the South Census Region have lower
wages at the 40th percentile of weekly earnings of full-time salaried
workers than any other Census divisions. By focusing on the lowest-wage
Census Region--made up of the three lowest-wage Census divisions--we
have removed the effect of the three higher earnings Census Regions on
the salary level, ensuring the salary level is not driven by earnings
in high- or even middle-wage regions of the country. Moreover,
establishing the salary level based on a Census Region provides a
sufficient data set to capture differences across regional labor
markets and produces a salary level that is appropriate on a national
basis.
---------------------------------------------------------------------------
\40\ The West South Central division comprises Arkansas,
Louisiana, Oklahoma, and Texas.
\41\ The East South Central division comprises Alabama,
Kentucky, Mississippi, and Tennessee.
\42\ A number of commenters noted that the Department's proposal
is higher than the minimum salary level necessary for an EAP
employee to be exempt from state overtime laws in two high-wage
states, California ($41,600 in 2016) and New York ($35,100 in 2016).
See, e.g., Corpus Christi Chamber of Commerce; FMI; IFA; Littler
Mendelson. The salary thresholds for the white collar exemption in
California and New York are based on multipliers of the full-time
equivalents of those states' minimum wages; the salary level in
California is 2 times the state minimum wage, and the salary level
in New York is typically 1.875 times the state minimum wage. See
Cal. Lab. Code Sec. 515(a); N.Y. Comp. Codes R. & Regs, 12
Sec. Sec. 142-2.1, 2.14. These multipliers are lower than the
historical ratio of the Department's short test salary level and the
federal minimum wage (which has never been lower than 2.98, see 80
FR 38533), and they approximate the historical ratio between the
Department's long test salary level and the federal minimum wage
(which, between 1958 and 1975, ranged from 1.85 to 2.38). The
Department believes that the salary level yielded by our
methodology, which is 3.15 times the current federal minimum wage,
better corresponds to the standard duties test, which--like the old
short duties test--does not include a quantitative limit on
nonexempt work. The Department also notes that California requires
exempt EAP employees to spend at least 50 percent of their time
performing their primary duty, not counting time during which
nonexempt work is performed concurrently. See Cal. Lab. Code Sec.
515(a), (e); see Heyen v. Safeway Inc., 157 Cal. Rptr. 3d 280, 302
(Cal. Ct. App. 2013).
---------------------------------------------------------------------------
The Department also declines to adopt different salary levels for
different regions of the country or for different industries or sizes
of businesses. The Department has always maintained a salary level
applicable to all areas and industries. As the Department explained
when we rejected regional salary thresholds in the 2004 Final Rule,
adopting multiple different salary levels is not administratively
feasible ``because of the large number of different salary levels this
would require.'' 69 FR 22171. Furthermore, as discussed earlier, the
Department believes the methodology adopted in this Final Rule will
adequately account for commenters' concerns about geographic and other
disparities by setting the salary level based on salaries in the
lowest-wage Census Region.
In addition to asserting that the proposed salary level is
inappropriate for low-wage regions and industries, commenters
requesting a lower salary level also criticized the methodology the
Department used in our proposal, took issue with the justifications
underpinning the proposal, and predicted that the proposed salary level
would negatively impact employers and employees. Some commenters
criticized the Department for using a different percentile to set the
salary threshold than it has in the past. See, e.g., FMI; National
Roofing Contractors Association (asserting that the ``threshold would
extend to the 40th percentile of wage earners, up sharply from
methodologies used when previously determining the threshold that used
the 10th and 20th percentile'').
Several commenters also disagreed with the Department's explanation
that it was necessary to set a percentile that would not only reflect
increases in nationwide salary levels since 2004, but also correct for
the fact that the salary level set in 2004 was too low--when paired
with a duties test based on the historical short duties test--to
effectively screen out overtime-protected white collar employees from
the exemption. Many of these commenters asserted that the Department
did account for the elimination of the long duties test, by increasing
``the percentile used from 10th to 20th.'' Littler Mendelson; see also
AH&LA; NRF. The Chamber commented that the Department did not need to
adjust for the elimination of the long duties test in 2004 because the
long test salary level was so in need of updating that the long duties
test had been effectively inoperative for many years. Finally, some
commenters asserted that the Department improperly equates the standard
duties test with the less rigorous short duties test. See, e.g., World
Floor Covering Association (``DOL did not eliminate the long duty test
and keep the short duty test in 2004. Rather, it combined the short and
long duties tests by relaxing the strict standards under the long duty
test and increasing duties under the short duty test.'') The Chamber
and the Iowa Association of Business and Industry pointed out that in
2004 the Department added to the standard executive duties test an
additional requirement (that the employee be one who has ``the
authority to hire or fire other employees or whose suggestions and
recommendations'' as to these matters ``are given particular weight''),
and the Iowa Association of Business and Industry also noted that the
Department added a ``matters of significance'' qualification to the
administrative standard duties test.
The Department disagrees with these comments, and we continue to
believe that the salary level set in 2004 was too low to effectively
screen out from the exemption overtime-protected white collar employees
when paired with the standard duties test. As an initial matter, we
disagree with commenters' suggestion that the standard duties test does
not closely approximate the historic short duties test because of minor
differences between the two tests. In 2004, the Department described
these differences as merely ``de minimis,'' and explained that the new
standard duties test is ``substantially similar'' to the old short
duties test. 69 FR 22192-93; 69 FR 22214. The key difference between
the old short test and the old long test was that the long test imposed
a bright-line 20 percent cap on the amount of time an exempt employee
could spend on nonexempt duties (40 percent for employees in the retail
or service industries). The short duties test, in contrast, did not
impose a specific limitation on nonexempt work because the short test
was intended to apply only to workers who earned salaries high enough
that such a limitation was unnecessary. The standard duties test
developed in 2004 takes the short test approach and does not
specifically limit nonexempt work.
When moving to a standard duties test based on the short duties
test in 2004, the Department relied on the methodology we had
historically used to set the long test salary threshold, with two
changes. First, the Department set the salary level based on the
earnings of exempt and nonexempt full-time salaried employees. In
previous
[[Page 32412]]
rulemakings, the Department had looked only at salary data on employees
who met the EAP exemption, who earn higher salaries on average than
nonexempt salaried employees. See 69 FR 22166-67. Second, recognizing
that ``employees earning a lower salary are more likely non-exempt,''
the Department offset the first change by making an additional
adjustment. Id. The 2004 Final Rule set the salary level to exclude
from exemption ``approximately the lowest 20 percent of all salaried
employees,'' whereas previously the Department set the salary level to
exclude ``approximately the lowest-paid 10 percent of exempt salaried
employees.'' 69 FR 22168 (emphases added and in original); 69 FR 22166
(emphases added). By setting the salary threshold at a higher
percentile of a data set that included employees likely to earn lower
salaries, the Department explained that we reached a final salary level
that was ``very consistent with past approaches'' to setting the long
test salary threshold. 69 FR 22167.
Although the Department also recognized the need to make an
additional adjustment to the long test salary level methodology because
of the move to the standard duties test, see 69 FR 22167, the salary
level included in the 2004 Final Rule ultimately did not do so. The
Department indicated that the change in percentile could account for
both the fact that the data now ``included nonexempt salaried
employees'' and ``the proposed change from the `short' and `long' test
structure.'' Id.; see 68 FR 15571. At the same time, however, the
Department acknowledged that the change to the 20th percentile of
exempt and nonexempt salaried employees produced a salary that was in
fact roughly equivalent to the salary derived through the methodology
previously used to set the long test salary levels. See 69 FR 22168. As
the data tables in the 2004 Final Rule show, the $455 salary level
excluded only 8.2 percent of likely exempt employees in the South and
10.2 percent of likely exempt employees in retail. See 69 FR 22169,
Table 4; see also 69 FR 22168 (``The lowest 10 percent of likely exempt
salaried employees in the South earn just over $475 per week.'').\43\
Accordingly, the Department set the standard salary level using a
methodology that yielded a result consistent with the methodology we
had historically used to set the salary level paired with the long
duties test, even though the new standard duties test was based on the
short duties test. This was a methodological error, even if employers
at the time were primarily using the less rigorous short duties test.
The fact that the long duties test was unused because the Department
had neglected to update the salary associated with it for 29 years does
not mean that we did not need to account for the removal of the long
test when the standard test was established. The Department is now
correcting this error by setting the salary level equivalent to the
40th, rather than the 20th, percentile of weekly earnings of full-time
salaried workers in the lowest-wage Census Region (the South). This
percentile results in a salary level that is at the low end of the
historical range of short test salary levels, based on the historical
ratios between the short and long test salary levels, but is
appropriately higher than the historical long test salary levels. By
making this change to our 2004 methodology, the Department better
accounts for the fact that the standard duties test is significantly
less rigorous than the long duties test and, therefore, the salary
threshold must play a greater role in protecting overtime-eligible
employees.
---------------------------------------------------------------------------
\43\ While the 2004 method and the Kantor long test method
produced similar salaries in 2004, the salary levels yielded by
these methods now diverge significantly. Today, the 2004 method
would produce a salary level of $596 per week, while using the
Kantor long test method would result in a salary level of $684 per
week. See section VI.C.iii. Thus, not only would using the 2004
methodology today fail to account for elimination of the long duties
test, it would result in a noticeably lower salary level than the
average long test salary level between 1940 and 2004 in 2015
dollars.
---------------------------------------------------------------------------
2. Purpose of the Salary Level Test
Several commenters that stated that the Department's proposed
threshold is too high asserted that the proposal alters the purpose of
the salary test and inappropriately minimizes the role of the duties
test by excluding from the exemption too many employees who satisfy the
standard duties test. In support of this point, SHRM noted the
Department's estimate that 25 percent of white collar workers subject
to the salary level test who currently meet the duties test would be
overtime-protected under the Department's proposed salary level. HR
Policy Association stated that, if the salary level was set according
to the Department's proposed methodology, 25 percent of accountants and
auditors, 24 percent of business and financial operation managers, and
11 percent of ``chief executives'' would not qualify for the EAP
exemption in 2014.
Several commenters representing employers stated that the salary
level has historically been set at a level such that ``employees below
it would clearly not meet any duties test,'' or would be very unlikely
to satisfy the duties requirements. NRA; see also HR Policy
Association; Jackson Lewis; SHRM. SHRM and others asserted that the
proposal would for the first time set the salary level such that a
large number of employees who satisfy the duties test would be excluded
from the exemption, which would therefore make them overtime eligible.
These commenters pointed to the Department's statement, when setting
the long test salary thresholds in 1949 and 1958, that the thresholds
should not defeat the exemption for ``any substantial number of
individuals who could reasonably be classified for purposes of the Act
as bona fide executive, administrative, or professional employees,''
and should provide a ``ready method of screening out the obviously
exempt employees.'' Weiss Report at 8-9; Kantor Report at 2-3.
Commenters asserted that because only those who are ``very likely to
satisfy'' the duties tests earn salaries above the Department's
proposed threshold, see Jackson Lewis (emphasis in comment), the
Department has turned the historical purpose of the salary level ``on
its head.'' See PPWO. PPWO, SHRM, and others further commented that the
Department's proposal improperly renders the duties test superfluous
and makes the salary level test the ``sole'' determinant of exempt
status.
The Chamber, FMI, and SHRM also stated that the Department lacks
the authority to set wages for, or establish a salary level with the
goal of, improving the conditions of executive, administrative, and
professional employees. IFA asserted that because the Department's
proposal makes nonexempt what IFA characterized as a significant number
of employees who would clearly meet the duties test, the proposal
``expands the number of employees eligible for overtime beyond what
Congress envisioned.''
Commenters representing employees, however, disagreed that the
purpose of the salary level is to identify employees who are very
likely to fail the duties tests. NELA and other commenters asserted
that the primary purpose of the salary level is to prevent employers
from inappropriately classifying as exempt those who are not ``bona
fide'' executive, administrative, or professional employees. NELA noted
that the proposed threshold is lower than the salaries of roughly 41
percent of salaried workers who fail the duties test, according to the
NPRM, and AFL-CIO commented that under the proposal, ``the percentage
of overtime-
[[Page 32413]]
eligible white collar salaried employees above'' the salary level
``will still be considerably higher than the percentage of employees
below the threshold who meet the duties test.'' Commenters representing
employees also disagreed that the Department's proposal would prevent
employers from taking advantage of the exemption for a substantial
number of bona fide executive, administrative, or professional
employees. For instance, EPI noted that BLS scores occupations by
skill, knowledge, and responsibility, and finds an hourly wage of about
$24 (or $970 for a 40-hour workweek) is below the salary level
associated with supervisory responsibilities.
As the Department explained in the NPRM, the purpose of the salary
level test has always been to ``distinguish bona fide executive,
administrative, and professional employees from those who were not
intended by Congress to come within these exempt categories.'' 80 FR
38524. Any increase in the salary level must therefore ``have as its
primary objective the drawing of a line separating exempt from
nonexempt employees.'' Id. The salary methodology established in this
Final Rule fulfills this purpose by effectively and efficiently
demarcating between white collar employees who are overtime protected
and those who may be bona fide EAP employees.
The Department does not believe that the methodology adopted in
this Final Rule would defeat the exemption for too many employees who
pass the standard duties test, or render the standard duties test
superfluous. There will always be some employees performing EAP duties
who are paid below the salary threshold, as well as overtime-eligible
employees who are paid above the salary threshold (and thus whose
status turns on the application of the duties test). See 80 FR 38527.
Under the Final Rule, 6.5 million white collar workers who earn above
the required salary level do not satisfy the standard duties test,
representing 47 percent of the total number of white collar workers who
fail the duties test. For these overtime-eligible salaried workers, the
standard duties test rather than the salary test will dictate their
exemption status. For example, 48 percent of secretaries and
administrative assistants in banking nationwide earn at or above the
$913 per week salary level adopted in this Final Rule, although at most
10 percent of such workers are likely to pass the standard duties test.
Likewise, 71 percent of first-line supervisors of mechanics,
installers, and repairers in the utilities industry nationwide earn at
least $913 per week, even though only 10 to 50 percent of such workers
are likely to pass the standard duties test.
By contrast, of salaried white collar workers who currently meet
the standard duties test, 5.0 million (22.0 percent) earn less than
$913 per week, and will thus be eligible for overtime under this Final
Rule. Whenever the Department increases the salary level, it is
inevitable that ``some employees who have been classified as exempt
under the present salary tests will no longer be within the exemption
under any new tests adopted.'' Kantor Report at 5. As we have
explained, such employees include ``some whose status in management or
the professions is questionable in view of their low salaries,'' and
some ``whose exempt status, on the basis of their duties and
responsibilities, is questionable.'' Id. Moreover, as we have long been
aware, if too low a salary level is paired with a duties test that does
not specifically limit nonexempt work, employers may inappropriately
classify as exempt workers who perform large amounts of nonexempt work.
See 40 FR 7092. The Department believes that many of the workers who
will no longer be exempt as a result of this rulemaking would have
failed the long duties test and are currently inappropriately
classified because of the mismatch between the current standard duties
test and the standard salary level. To the extent that commenters
expressed concerns that the proposal would exclude from exemption too
many bona fide EAP employees in certain areas and industries, the
Department has recalibrated the methodology in this Final Rule to
better take into account salaries in low-wage regions and industries,
as discussed earlier, while remaining cognizant of the corresponding
but opposite impact on high-wage regions and industries. See section
VI.C.ii.
Commenters asserting that the Department's proposal turned the
purpose of the salary level test ``on its head'' misconstrue the
relationship between the salary level test and the duties test as it
has existed throughout most of the history of the part 541 regulations.
The fact that an employee satisfies the duties test, especially the
more lenient standard duties test, does not alone indicate that he or
she is a bona fide executive, administrative, or professional employee.
The salary level test and duties test have always worked in tandem to
distinguish those who Congress intended the FLSA to protect from those
who are ``bona fide'' EAP employees. The Department has long
recognized, moreover, that ``salary is the best single indicator of the
degree of importance involved in a particular employee's job,'' Weiss
Report at 9, and ``the best single test of the employer's good faith in
characterizing the employment as of a professional nature.'' Stein
Report at 42. Thus, the Department acknowledged shortly after we first
promulgated the part 541 regulations that, in the absence of a clause
``barring an employee from the exemption if he performs a substantial
amount of nonexempt work,'' it becomes ``all the more important'' to
set the salary level ``high enough to prevent abuse.'' Stein Report at
26. This inverse correlation between the salary level and the duties
requirements was the basis of the separate short and long tests, which
co-existed until 2004.
As reflected in many comments favoring a lower salary level, the
Department historically paired the long duties test--which limited that
amount of nonexempt work an exempt employee could perform--with a
salary level designed to minimize the number of employees satisfying
that test who would be deemed overtime-eligible based on their
salaries. Even then, the Department noted that the long test salary
level should exclude the ``great bulk'' of nonexempt employees from the
EAP exemption. Weiss Report at 18. When the Department enacted the
short test in 1949, however, we recognized that this more permissive
``short-cut test'' for determining exempt status--which did not
specifically limit the amount of time an exempt employee could spend on
nonexempt duties--must be paired with a ``considerably higher'' salary
level. Id. at 23. This salary level, the Department explained, ``must
be high enough'' to qualify for the EAP exemption ``only those persons
about whose exemption there is normally no question.'' Id. Accordingly,
the Department set the short test threshold such that those who earned
above this level would meet the requirements of the long duties test--
including the limit on performing nonexempt work--``with only minor or
insignificant exceptions.'' Id. In other words, the short test salary
threshold was sufficiently high that an employee earning above this
level was not only ``very likely,'' but nearly certain, to satisfy the
long duties test, as well as the short duties test. Between 1949 and
1975, the Department adhered to these principles by enacting short test
salary levels at approximately 130 to 180 percent of the long test
salary levels.
The standard duties test adopted in 2004, and unchanged by this
Final Rule, is essentially the same as the old short duties test. It
does not specifically limit the amount of time an exempt employee
[[Page 32414]]
can spend performing nonexempt duties. Accordingly, the Department
disagrees with commenters that suggest that the current duties test can
be paired appropriately with a salary level derived from the same
methodology we have historically used to set the salary level paired
with the long duties test. The Department also disagrees, however, with
commenters that suggest the current standard duties test could be
paired with a salary level derived from the 50th percentile of full-
time salaried workers or from the 1975 short test salary level without
also reinstating a lower-salaried long test. The methodology adopted in
this Final Rule results in a salary level that is higher than indicated
by historical long test methodologies, but at the low end of the
historical salary range of short test salary levels, based on the
ratios between the short and long test salary levels. The Department
believes that this approach strikes an appropriate balance between
protecting overtime-eligible workers and reducing undue exclusions from
exemption of bona fide EAP employees. It also does so without
necessitating a return to the two-test structure or imposing a
quantitative limit on nonexempt work--alternatives that many of these
same commenters strenuously opposed. See section IV.F.
3. Data Used To Set the Standard Salary Level
Some commenters representing employers also raised concerns about
the Department's use of the CPS data on full-time nonhourly employees.
The Chamber and Fisher & Phillips advocated that rather than calculate
the salary level using the CPS data, the Department should create our
own data set of exempt salaried employees drawn from WHD investigations
and field research. NAM stated that the CPS data provides an ``apples-
to-oranges'' comparison because it reflects all nonhourly compensation,
while the Department's proposal excludes certain forms of compensation
(for example, some incentive pay) from counting toward the salary
threshold, and other commenters made similar assertions. The Chamber,
Fisher & Phillips, and the Iowa Association of Business and Industry
(IABI) also disagreed with the Department's conclusion that CPS data on
compensation paid to nonhourly workers is an appropriate proxy for
compensation paid to salaried workers. Employees sampled might be paid
on a piece-rate or commission basis, for example, and thus, the Chamber
stated, the ``non-hourly worker category is at best a rough and
imprecise measure of workers paid on the basis required for exempt
status.'' In addition, IABI, the International Foodservice Distributors
Association, and others criticized the Department for declining to
further restrict the CPS sample by filtering out various categories of
employees--such as teachers, lawyers, or federal employees--based on
statutory and regulatory exclusions from FLSA coverage or the salary
requirement.
The Department continues to believe, as we did in 2004, that CPS
data is the best available data for setting the salary threshold. The
CPS is a large, statistically robust survey jointly administered by the
Census Bureau and BLS, and it is widely used and cited by industry
analysts. It surveys 60,000 households a month, covering a nationally
representative sample of workers, industries, and geographic areas and
includes a breadth of detail (e.g., occupation classifications, salary,
hours worked, and industry). As the Department explained in the NPRM,
the CPS offers substantial advantage over data drawn from the pool of
our own investigations, because the Department's investigations contain
too few observations to yield statistically meaningful results. See 80
FR 38528.
The Department considers CPS data representing compensation paid to
nonhourly workers to be an appropriate proxy for compensation paid to
salaried workers, as we explained in the NPRM. See 80 FR 38517 n.1. The
Department believes that most nonhourly workers are likely to be paid a
salary, and although the data may include earnings of workers paid on a
fee basis, the EAP exemption can apply to bona fide administrative and
professional employees compensated in this manner. See Sec. 541.605.
Moreover, as explained in greater detail in section IV.C., the
Department has adopted a change to the salary basis test in this Final
Rule which will newly allow employers to satisfy as much as 10 percent
of the standard salary level requirement through the payment of
nondiscretionary bonuses and incentive pay (including commissions). The
Department acknowledges that the CPS data set may include some
compensation excluded from the salary test; however, we are not aware
of any statistically robust source that more closely reflects salary as
defined in our regulations, and the commenters did not identify any
such source.
Finally, the Department disagrees that we should have excluded the
salaries of employees in various job categories, such as teachers,
doctors, and lawyers, because they are not subject to the part 541
salary level test. These white collar professionals are part of the
universe of executive, administrative, and professional employees who
Congress intended to exempt from the FLSA's minimum wage and overtime
requirements. Including them in the data set achieves a sample that is
more representative of EAP salary levels throughout the economy. Moving
to an even more standardized sample that does not require adjustments
also serves the Department's goal of making the salary methodology as
transparent, accessible, and as easily replicated as possible, and is
consistent with the President's directive to simplify the part 541
regulations.
4. Comments Requesting a Phase-In of the Proposed Increase
Many employers and commenters representing them also expressed
concern about the magnitude of the Department's proposed increase from
the 2004 salary level. Under the proposal, the salary level would have
increased from $455 a week to $972 per week based on fourth quarter
2015 data, a 113.6 percent overall increase and 9.5 percent average per
year increase. Under the Final Rule, the salary level will increase to
$913 per week, a 100.7 percent overall increase and 8.4 percent average
per year increase. Several commenters, including the Chamber, Littler
Mendelson, and NAHB, described the proposed percentage increase in the
salary level as ``unprecedented.'' Many commenters urged the Department
to gradually phase-in an increase to the salary level. SHRM, for
example, stated that a phased-in approach will provide some flexibility
to employers, allowing them to gather information about the hours that
currently nonexempt employees work and to budget for any increased
wages and other costs. Independent Sector noted that an appropriate
phase-in period would allow non-profit organizations to adjust to a new
salary level without reducing programs and services. Some commenters
advocating an incremental approach, such as PPWO and the Chamber,
opposed the proposed salary level, but requested a gradual phase-in if
the Department moves forward with the proposal. Others did not oppose
the Department's proposed threshold, so long as the Department phases
in the increase. See, e.g., National League of Cities; the Northeastern
Retail Lumber Association; United Community Ministries; Walmart;
Washington Metro Area Transit Authority (WMATA).
Contrary to some commenters' assertions, the magnitude of the
salary increase proposed by the Department is not unprecedented. The
2004 Final Rule
[[Page 32415]]
increased the then-current long test salary level for executive and
administrative employees by 193.5 percent (from $155 to $455), and
increased the then-current short test salary level by 82 percent (from
$250 to $455). See 69 FR 22123 (explaining that the final rule nearly
``triples'' the ``minimum salary required for exemption''). Further, as
EPI pointed out in its comment, in the approximately 11 years between
1938 and 1949, the administrative long test salary test increased 150
percent. The Department acknowledges that this rulemaking enacts a
sizeable increase to the 2004 salary level; however, such an increase
is necessary in order to reflect increases in actual salary levels
nationwide since 2004 and correct the 2004 Final Rule's mismatch
between the standard duties test and the standard salary level based on
the long duties test level. As we explained in the NPRM, this is the
first time that the Department has needed to correct for an incongruity
between the existing salary level and the applicable duties test. That
said, under our proposal, the salary level effective in 2016 would have
been $50,544; under the Final Rule, we project that the salary level
will not reach $50,000 until the first update on January 1, 2020.
Additionally, as explained in section II.G., this Final Rule has a
delayed effective date of December 1, 2016--more than the 120-day
delayed effective date following publication of the 2004 Final Rule.
The Department believes that the timing of the effective date of this
Final Rule will help minimize disruption as employers adjust to the new
salary level.
5. Impacts of the Increased Salary Level
Commenters identified many impacts that they believed would flow
from the proposed increase in the standard salary level. Commenters
representing employers and employees differed dramatically on some of
the predicted impacts of the rule. In addition, where commenters
representing employers and employees agreed on likely outcomes, they
viewed the advantages and disadvantages of those outcomes quite
differently.
Many employers and their representatives stated that employers
would not be able to afford to increase the salaries of most of their
currently exempt employees to the proposed level. Therefore, they
stated that they were likely to reclassify many of these employees to
overtime-protected status, which they asserted would disadvantage the
employees in a number of ways and would not increase their total
compensation. In contrast, employee advocates predicted that workers
will benefit from the increased salary level; those who receive a
salary increase to remain exempt will benefit directly, and those who
are reclassified as overtime eligible will benefit in other ways, as
detailed below.
Employers and their representatives, including AH&LA, CUPA-HR, NAM,
NRF, and the National Small Business Association (NSBA), suggested that
they would reclassify many employees to overtime-protected status. For
example, the NGA surveyed its members, and 98 percent stated they would
reclassify some currently exempt workers, and 80 percent stated that
they would reclassify 50 percent or more because they cannot afford to
increase their salaries. NCCR commented that one restaurant chain
stated it likely would reclassify 90 percent of its managers and
another company with more than 250 table service restaurants estimated
that 85 percent of its managers have base salaries below the proposed
threshold. CUPA-HR stated that 87 percent of those responding to its
survey of higher education human resource professionals stated ``they
would have to reclassify any exempt employee currently making less than
$47,500'' (emphasis in comment).
Many employers and their representatives stated that they would
convert newly nonexempt employees to hourly pay and pay them an hourly
rate that would result in employees working the same number of hours
and earning the same amount of pay as before, even after accounting for
overtime premium pay. Also, some employers indicated they might reduce
their workers' hours, especially over time, in an attempt to avoid
paying any overtime premium pay, so the formerly exempt workers' hours
and pay ultimately could be lower. See, e.g., AH&LA; CUPA-HR; Jackson
Lewis; NAM; NRF; NSBA.
Some commenters gave specific estimates of the percentage of newly
nonexempt employees who would have their overtime hours limited.
Associated General Contractors of America (AGC) surveyed its
construction contractor members and more than 60 percent expected to
institute policies and practices to ensure that newly overtime-eligible
employees do not work more than 40 hours per week. ANCOR surveyed
service provider organizations and more than 70 percent stated that
they would prohibit or significantly restrict overtime hours. SHRM
similarly commented that 70 percent of its survey respondents stated
they would implement restrictive overtime policies. NRF cited an Oxford
Economics report and stated that 463,000 retail workers would be
reclassified to nonexempt status and those employees who work overtime
would be converted to hourly pay, with their earnings remaining the
same after their hourly rates of pay were adjusted, while an additional
231,500 retail employees would be reclassified to nonexempt status and
have their hours and earnings reduced.\44\
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\44\ NRF commissioned Oxford Economics to examine the impact of
the Department's rulemaking on the retail and restaurant industries
and attached three documents produced by the firm to its comments on
the NPRM. The first document is a report titled ``Rethinking
Overtime--How Increasing Overtime Will Affect the Retail and
Restaurant Industries'' and was published before the Department
issued the NPRM. The second document is a letter dated July 17, 2015
that updates the estimates provided in the ``Rethinking Overtime''
paper in light of the Department's proposal. The third document is a
letter dated August 18, 2015 that examines states' prevailing wage
levels and the Department's automatic updating proposal.
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Not all employers indicated such high numbers of employees would be
reclassified, converted to hourly pay, or limited in hours. For
example, NAM stated that 41 percent of manufacturers stated they would
reclassify employees and 37.2 percent stated they would then reduce
employees' hours. NAHB stated that 33 percent of survey respondents
indicated they would need to make some change regarding construction
supervisors, and 56 percent of that subgroup indicated they would take
steps to minimize their overtime. However, only 13 percent of
respondents stated they would reduce salary, and only 13 percent stated
they would switch employees from a salary to an hourly rate.
Numerous employers and their representatives, including AH&LA,
CUPA-HR, NCCR, Nebraska Furniture Mart, NRA, NRF, OneTouchPoint, Pizza
Properties, Seyfarth Shaw, SHRM, SIFMA, and the Salvation Army, also
commented that the employees who were reclassified to nonexempt status
would be further disadvantaged because they would lose valuable fringe
benefits, such as life insurance, long-term disability insurance,
increased vacation time, incentive compensation, tuition reimbursement,
and increased retirement contributions. They noted that many employers
offer such benefits only to exempt employees, or provide them to exempt
employees at a greater rate or at a reduced cost. In addition, ANCOR
and others stated that nonexempt workers' fringe benefits would be
negatively affected because employers would take funds away from such
benefits in order to pay for the increased costs of the rule. AGC
surveyed its construction contractor members, and 40 percent expected
[[Page 32416]]
affected employees to lose some fringe benefits. With regard to those
employees who remain exempt and receive a higher salary, some employer
representatives, including AH&LA, NCCR, and NRF, stated that the
employees would not actually benefit because employers would make other
changes, such as reducing or eliminating bonuses or other incentive
compensation, in order to keep their total labor costs the same. These
commenters viewed this as problematic because these employees are in
middle management positions that are ``key steps on the ladder of
professional success'' and incentive compensation is an important
motivator. AH&LA stated that reducing incentive compensation ``curtails
the ability of employers to reward their star employees,'' although
they acknowledged that this concern would be mitigated if incentive
compensation could count toward the increased salary level. NAHB's
survey results showed that 55 percent of those employers who indicated
that some change for construction supervisors would be necessary would
reduce or eliminate bonuses, while 33 percent stated they would reduce
or eliminate other benefits.
Employer groups also stated that employees reclassified to
nonexempt status and converted to hourly pay would be harmed by the
loss of flexibility and the loss of the guarantee of receiving the same
salary every workweek. Employers and their representatives, including
AH&LA, American Bankers Association (ABA), the Chamber, FMI, IFA, New
Jersey Association of Mental Health and Addiction Agencies,
OneTouchPoint, PPWO, SIFMA, Seyfarth Shaw, and SHRM, asserted that
exempt status gives employees the flexibility to come in late, leave
early, and respond to unexpected events such as taking a sick child to
the doctor. Moreover, they can do so without fear of losing pay for the
time spent away from work. Newly overtime-eligible employees, these
commenters asserted, will have to account for their time and they will
have to think more carefully about taking unpaid time off to deal with
personal and family issues. Employer representatives noted that another
benefit of exempt status is that many employers allow exempt employees
to perform some of their work remotely and outside of normal business
hours, such as from home during the evening, as best suits the
employees' personal schedules. See, e.g., AH&LA; American Staffing
Association; CUPA-HR; HR Policy Association; Jackson Lewis; Maryland
Chamber of Commerce; SIFMA; Women Impacting Public Policy (WIPP); YMCA.
Commenters stated that many employers do not allow nonexempt employees
this same flexibility in work location and in the ability to work
during non-traditional hours, as it is more difficult to monitor their
hours and ensure proper compensation for all hours worked. For example,
SHRM stated that 67 percent of its survey respondents indicated
decreased workplace flexibility and autonomy were likely results of the
Department's proposal.
Employer groups also stated that employees reclassified to
nonexempt status will lose out on after-hours management training
programs and committee meetings and thus have fewer opportunities for
career advancement. See, e.g., AH&LA; ANCOR; Construction Industry
Round Table; Credit Union National Association; CUPA-HR; Jackson Lewis;
Kentucky Pharmacists Association; Maryland Chamber of Commerce; NCCR;
NRF; New York State Restaurant Association; PPWO; SIFMA; SHRM. Many of
these commenters also stated that newly overtime-protected workers will
not be permitted to work extra hours to get the job done as a way to
prove their talents and dedication, and they will not be asked to
perform the most challenging and important managerial functions.
Employers asserted that these changes will ``hollow out'' the ranks of
middle management, limit existing career paths, and negatively affect
the newly nonexempt employees' promotion potential and future earnings.
See, e.g., Michigan Chamber of Commerce; NCCR; NRF.
Many employers and their representatives also emphasized that the
loss of exempt status will have a negative impact on employee morale.
They stated that employees sought out their management role and view
their exempt status as an indication of the employer's recognition of
their achievements and their position as part of the management team.
They stated that the loss of exempt status will be perceived as a
demotion and devaluation of their roles in the organization, even if
other aspects of their compensation remain the same. See, e.g., ANCOR;
Chamber; CUPA-HR; FMI; Jackson Lewis; NAM; NCCR; NGA; NRA; Pizza
Properties; SIFMA; SHRM; Salvation Army. NRF cited a survey it
commissioned of 200 salaried retail and restaurant managers showing
that the change in status would make 45 percent of managers feel like
they were ``performing a job instead of pursuing a career,'' and 31
percent would feel limited in their ability to advance in their
careers.
Finally, employer representatives identified a number of other
negative consequences that they believed would flow from the adoption
of the proposed increase in the standard salary level. For example,
some employer groups, including FMI, NRF, and WIPP, emphasized that
they believed employers would eliminate full-time jobs and create part-
time jobs. FMI, NGA, Seyfarth Shaw, and SHRM indicated that employers
would use part-time workers to ensure that newly overtime-eligible
employees did not have to work overtime hours. ANCOR, NGA, Seyfarth
Shaw, and the YMCA also predicted that, as the hours of the newly
nonexempt workers are restricted, employers will respond by increasing
the workload burden and scope of responsibility of the managers and
supervisors who remain exempt.
Employees and employee advocates, on the other hand, predicted that
workers would benefit in a variety of ways from the proposed increase
in the standard salary level. First, they saw direct benefits from the
proposed salary because, for those who remain exempt but currently earn
less than the proposed increase, they will receive additional pay each
week in order to raise them to the new salary level. Employees who are
reclassified to nonexempt status will get more time outside of work to
spend with their families or to engage in leisure activities if their
hours are reduced, and thus they will have a better work-life balance;
alternatively, they will be paid time-and-a-half for any overtime hours
they work. Finally, work opportunities will be spread as workers who
had been unemployed or underemployed will gain additional hours.
Employee advocates viewed these outcomes as consistent with the
fundamental purpose of the FLSA's overtime provision. See, e.g., AFL-
CIO; American Federation of Teachers (AFT); Legal Aid Society-
Employment Law Center (ELC); National Women's Law Center (NWLC);
Partnership.
Some advocates, including AFL-CIO, AFT, and NELP, emphasized the
benefits of spreading employment in light of the harms that come from
working long hours, citing studies showing that long hours are related
to stress and injuries at the workplace and increased incidences of
certain chronic diseases like heart disease, diabetes, and depression.
They also cited studies showing the high cost to businesses associated
with absenteeism and turnover due to workplace stress and stated that
productivity would improve
[[Page 32417]]
by reducing turnover. The AFT noted that if employers cut formerly
exempt workers' hours and add more nonexempt jobs, that would ``likely
have a salutary effect on wages since the low wage growth in our
economy is related to employment slack.''
EPI disputed the employers' claim that wages and hours would remain
the same after employees were reclassified to nonexempt status. EPI
emphasized that this view assumes that employees have no bargaining
power. However, EPI stated that a ``consistent finding of both labor
and macroeconomics is that nominal wages are `sticky,' meaning that
employers rarely will lower them.'' EPI concluded this is particularly
likely to be the case now, given that the unemployment rate for college
graduates was just 2.6 percent in July 2015 and for those in
``management, professional, and related'' occupations was just 3.1
percent. Therefore, employers will not be able to reduce employees'
wage rates when they are reclassified to nonexempt status to the full
extent that would be necessary for the employees to receive no
additional compensation for overtime hours worked. NELP similarly
emphasized that, at a time when even low-wage employers are raising
their starting wages in order to attract and retain a qualified
workforce, it would be ``a foolhardy business practice'' for employers
to risk losing formerly exempt workers by decreasing their wages and
hours.
Worker advocates also disputed employers' claims that workers would
lose privileges and flexibility after they were converted. For example,
EPI pointed to research based on the General Social Survey showing that
salaried workers and hourly workers experience similarly limited
workplace flexibility at levels below $50,000 per year. The research
showed that 43-44 percent of hourly workers paid between $22,500 and
$49,999 were able to ``sometimes'' or ``often'' change their starting
or quitting times. That percentage only increased to 53-55 percent for
salaried workers in that same range. Only when salaries rose above
$60,000 did 80 percent of salaried workers report being able to
``sometimes'' or ``often'' change their starting or quitting times.
Employees paid hourly actually reported more flexibility in the ability
to take time off during the work day to take care of personal matters
or family members, with 41 percent of hourly workers earning $40,000-
$49,999 stating it was ``not at all hard'' compared to only 34 percent
of salaried workers. Finally, salaried workers reported slightly
greater levels of work stress than hourly workers, and they worked
mandatory overtime at the same frequency as hourly workers and more
days of overtime in general.
Many of the comments from individual exempt employees similarly
emphasized their lack of flexibility. For example, a retail store
manager described working 55-60 hours a week, with store staffing kept
at the bare minimum of two-person coverage. Therefore, the manager has
little ``flexibility when an employee calls out sick. I have to pick up
the slack.'' A chef similarly stated that he routinely works 20-30
hours of overtime per week, and has to modify his schedule to meet the
demands of the business, including by filling in if an overtime-
eligible cook gets sick. Another exempt employee who reported working
1136 hours of overtime in three years (an average of approximately 49
hours of work per week) stated, ``[i]f I complete my work in 30 hours I
still have to stay for the required work hours of the company & longer
as required or requested.'' A manager of a community home for the
intellectually disabled concurred, stating that the homes ``have to be
staffed 24 hours a day, 365 day[s] per year. To reduce[ ]
organizational overtime, managers are expected to work when employees
call in sick, are on leave, and when a client is in the hospital and
needs a 24 hour sitter. Managers also pitch in to help other homes when
there is a need.'' Other exempt workers similarly noted that they are
scheduled to staff specific shifts and also are required to fill in for
hourly workers who call out sick, when positions are vacant, when extra
hours are needed such as around the holidays, or when the employer has
to cut payroll to meet its targets.
With regard to the loss of ``status,'' NELP commented that, even if
employers do reclassify some employees to nonexempt status, there is no
reason to consider that a demotion. NELP stated the employer can
continue to give nonexempt employees whatever job titles are
appropriate and is not required to otherwise diminish their stature.
SEIU emphasized that it is not the designation of ``exempt'' that
provides status to workers, but rather the pay and benefits that should
accompany that designation. For example, most registered nurses, who
perform bona fide professional duties and whose earnings typically
exceed the proposed salary, nonetheless prefer to be paid hourly and be
overtime eligible. SEIU concluded that ``[b]eing classified as
ineligible for overtime is little comfort to a worker who routinely
works more than forty hours a week and can barely afford child care for
the time she is missing with her family.'' The UAW, representing
postdoctoral scholars, made the same point regarding status, concluding
that ``their low pay indicates that their employers do not view them or
treat them as bona fide professionals.''
Numerous individual employees also stated that they would not
perceive a change from exempt to overtime-protected status as a
demotion. For example, one employee stated that he sometimes works
seven days and more than 55 hours per week, and that he would ``gladly
move down to non-exempt and punch a time card. At least I would finally
be paid fairly for all the hours I am putting in.'' A retail store
manager similarly stated that he works an average of 55-60 hours per
week and looks forward to either receiving an increased salary or the
return of his personal life. He rejected the view that exempt employees
would feel demoted by a change in status, saying he does not want a
meaningless title and would not ``be embarrassed if my employees find
out I've been bumped to hourly again.'' Another store manager with 12
years of experience emphasized ``I am NOT concerned with the transition
from being exempt to non exempt if that were to happen.'' A convenience
store manager who works an average of 60-65 hours per week stated that
7 of the 8 exempt employees he knows quit in the past year due to being
overworked without any additional compensation, and he stated that
workers feel that an exempt position is ``a demotion rather than a
promotion.'' Another exempt employee stated that he believes that
businesses often use salaried positions as a way to cut down on
overtime costs, and that the employers ``who are bemoaning the loss of
`status' for their employees are probably those who have used this
trick to get more hours worked for less money.''
In response to some employers' assertions that they will reclassify
many of their currently exempt employees to overtime-protected status,
convert them to hourly pay, modify their pay so that they work the same
number of hours and earn the same amount, and potentially reduce their
hours in the long run, the Department estimates that 60.4 percent \45\
of exempt affected
[[Page 32418]]
employees do not currently work any overtime hours. As explained in
detail in the economic impact analysis in section VI.D.iv., we expect
there to be relatively little change in the weekly earnings or weekly
hours of such employees. We agree that for the remaining employees, who
do regularly or occasionally work overtime hours, the impact of the
rule will depend upon how their employers choose to respond, and we
recognize there likely will be a variety of responses from which
employers can choose. For example, employers will raise the salaries of
some employees to the new required level; employers will reclassify
some other employees to nonexempt status and provide minimum wage and
overtime protections and may attempt to minimize the overall cost by
modifying those employees' regular rates of pay and reducing their
hours. The economic impact analysis discusses the range of possible
outcomes. However, as explained in section VI.D.iv., based upon our
review of the economic literature, the Department concludes that the
most likely outcome is that affected workers who work overtime hours
and who are reclassified to overtime-protected status on average will
receive increased earnings, because employers will not be able to fully
adjust their regular rate of pay to the extent necessary to provide
only the same level of earnings. As further explained in the economic
impact analysis, workers whose exemption status changes also will see
their work hours decrease on average, and the extra hours will be
spread among other workers.\46\ The Department views these outcomes as
fully consistent with the dual purposes of the FLSA's overtime
requirement: (1) Spreading employment by incentivizing employers to
hire additional employees, but rewarding those employees who are
required to work overtime with time-and-a-half pay for overtime hours;
and (2) avoiding detrimental effects on the health and well-being of
employees by minimizing excessive working hours.
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\45\ The Department stated in the NPRM that 74.7 percent of all
affected workers were Type 1 workers who did not regularly work
overtime and did not work overtime in the survey week; therefore, we
assumed they would not be paid an overtime premium despite becoming
overtime protected. See 80 FR 38574. However, as explained in
section VI.D.iv., in response to comments that the Department
underestimated the number of affected workers who work overtime, the
Department has now classified a share of workers who reported they
do not usually work overtime, and did not work overtime in the
reference week (previously identified as Type 1 workers) as Type 2
workers who work occasional overtime. Accordingly, we now estimate
that 60.4 percent of affected workers will not receive any overtime
premium.
\46\ Not all employers will choose to cover the additional hours
by hiring new employees. Employers will balance the benefits of the
additional hours of work against the costs of hiring workers for
those hours. In some cases, this will result in hiring new workers;
in other cases, employers will have incumbent workers provide those
additional hours.
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The Department recognizes that these outcomes are averages and some
employees ultimately may receive lower earnings if their employers
reduce their hours more extensively in an effort to ensure that no
overtime hours are worked. However, such employees will receive extra
time off. Therefore, the Department partially concurs with the comments
of the individual employees and employee advocates who stated that the
overall impact of the rule would benefit employees in a variety of
ways, whether through an increased salary, overtime earnings when they
have to work extra hours, time off, and/or additional hours of work for
those who were previously unemployed or underemployed.
Some employers also asserted that employees reclassified as
nonexempt would lose fringe benefits such as life insurance, disability
insurance, increased vacation time, and bonuses and other incentive
compensation that they provide only to exempt employees. The Department
notes that employers may choose to continue to provide such benefits to
workers who employers like ABA and IFA described as ``critically
important''; the design and scope of such fringe benefit and incentive
compensation programs are within the employers' control. We see no
compelling reason why employers cannot redesign their compensation
plans to provide such fringe benefits and bonus payments based upon,
for example, the employees' job titles rather than based upon their
exemption status.\47\
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\47\ Where nondiscretionary bonuses or incentive payments are
made to nonexempt employees, the payments must be included in the
regular rate when calculating overtime pay. The Department's
regulations at Sec. Sec. 778.208-.210 explain how to include such
payments in the regular rate calculation. One way to calculate and
pay such bonuses is as a percentage of the employee's total
earnings. Under this method, the payment of the bonus includes the
simultaneous payment of overtime due on the bonus payment. See Sec.
778.210.
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With regard to the employer claim that employees reclassified to
overtime-protected status would lose flexibility in their schedule or
the ability to take a few hours off when needed for personal purposes,
the Department notes that the employees who are affected by this Final
Rule currently earn a salary between $455 per week and $913 per week
(or between $23,660 and $47,476 per year). The results of the General
Social Survey \48\ research discussed in the EPI comment indicate that
hourly-paid workers and salaried workers earning between $22,500 and
$49,999 have little difference in workplace flexibility with regard to
an employee's ability to modify his or her starting time or quitting
time; a substantial increase in such flexibility is not seen until
workers earn above $60,000. Moreover, workers paid hourly who earn
between $40,000 and $49,999 actually reported more flexibility to take
time off during the day than salaried workers in that pay range. Many
of the comments the Department received from individual exempt
employees similarly reflected a lack of current flexibility, with
employees indicating they were routinely scheduled to work well in
excess of 40 hours per week and also had to fill in for other employees
who were out sick or on vacation or when positions were unfilled.
Therefore, the Department does not believe that workers will incur the
significant change in flexibility that some employers envisioned if the
employer reclassifies them as nonexempt.
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\48\ The General Social Survey, which started in 1972, is the
largest project funded by the Sociology Program of the National
Science Foundation. Except for the U.S. Census, it is the most
frequently analyzed source of information in the social sciences.
See http://www3.norc.org/GSS+Website/About+GSS/.
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Employers also asserted that employees whose exemption status
changes would lose the ability to work from home and outside of normal
business hours, and they would lose the ability to attend after-hours
training opportunities and meetings or to stay late to ``get the job
done.'' The Department understands employers' concerns regarding the
need to control and keep accurate records of the work hours of
overtime-eligible employees.\49\ However, this Final Rule does not
prohibit employers from continuing to allow such employees flexibility
in the time and location where they work; most employees affected by
this Final Rule are employees who employers now trust to exercise
discretion and independent judgment with respect to matters of
significance on behalf of the company or to supervise other employees
and play a role in hiring, firing, and promoting other employees.
Employers should be able to trust such valued employees to follow the
employers' instructions regarding when, where, and for how many hours
they may work and to accurately record their hours worked.\50\
Moreover, as noted
[[Page 32419]]
above, an estimated 60.4 percent of employees affected by this Final
Rule do not work overtime hours now; the Department believes that any
changes for this substantial portion of affected workers will be
minimal. Further, the Department notes that most employers currently
have both exempt and nonexempt workers and therefore have systems
already in place for employers to track hours. Nonetheless, for those
employees who do work overtime and who become overtime eligible, the
employers will have to evaluate, for example, whether training and
other activities that currently occur outside the normal work day, and
for which employees currently receive no extra pay, should be moved to
within the normal work day or whether they are important enough to
warrant payment for any extra hours worked. However, because the
Department has concluded that white collar employees earning a salary
of less than $913 per week are not bona fide EAP workers, the
Department concludes that if the employees perform extra work to ``get
the job done'' they should be paid for all such time.
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\49\ The Department included in the fall 2015 Regulatory Agenda
our intent to publish a Request for Information seeking information
from stakeholders on the use of electronic devices by overtime-
protected employees outside of scheduled work hours.
\50\ The Department notes that there is no particular order or
form of records required. See 29 CFR 516.1(a). Employers may choose
whatever form of recordkeeping works best for their business and
their employees. For example, employers may require their employees
to record their hours worked; alternatively, some employers might
decide to record the hours themselves. Where an employee works a
fixed schedule that rarely varies, the employer may simply keep a
record of the schedule and indicate the number of hours the worker
actually worked only when the worker varies from the schedule
(``exceptions reporting''). 29 CFR 516.2(c). Furthermore, the
Department believes that most employers already maintain
recordkeeping systems for their overtime-eligible employees and that
these systems can accommodate newly overtime-eligible employees.
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Regarding the employer assertion that the change in exemption
status will harm employees because they will not be able to take time
off without losing pay for the time away from work, the Department
notes that employers are not required to change employees' pay basis
from salaried to hourly simply because they are no longer exempt.
Employers may continue to pay employees a salary, even when the
employees are entitled to overtime pay if they work in excess of 40
hours per week. See Sec. Sec. 778.113-.114. Moreover, even if newly
overtime-eligible employees are converted to hourly status, employers
are not required to dock such employees for the hours they take off.
Therefore, employers have the authority to determine how to structure
the pay plans of the newly overtime-eligible employees, and employers
need not structure their pay plans in a manner that results in the
potentially adverse effects that the employers identified.
Finally, employers asserted that the loss of exempt status would
have a negative impact on employees' morale. However, the Department
believes that for most employees their feelings of importance and worth
come not from their FLSA exemption status but from the increased pay,
flexibility and fringe benefits that traditionally have accompanied
exempt status, as well as from the job responsibilities they are
assigned. None of these are incompatible with overtime protection. Many
exempt employee commenters expressed significant concern and low morale
regarding their current situation, and they looked forward to an
improved situation under the new rule. Given the employers' emphasis on
the important roles that these employees play in the success of their
organizations, the Department anticipates that employers will strive to
adapt to this rule in a way that minimizes the financial impact on
their business while providing the maximum benefits, flexibility, and
opportunities to their employees. If employers make these changes in a
way that communicates the value they continue to place on the
contributions of newly overtime-eligible workers, we are confident that
employers can prevent employees from seeing their new entitlement to
overtime protection as a demotion.
6. Impacts on Litigation
The Department also received several comments predicting the impact
increasing the salary level would have on litigation. Commenters
representing employees, such as the International Association of Fire
Fighters (IAFF), stated that increasing the threshold would more
clearly demarcate between employees who are entitled to overtime and
those who are not, decreasing misclassification, and therefore,
litigation, involving the EAP exemption. According to the joint comment
submitted by 57 labor law professors, ``the excessive importance of the
duties test has resulted in the relatively high volume of litigation
surrounding the exemptions and the many successful claims that have
been asserted against employers in recent years,'' so raising the
salary level ``will benefit employers by providing them more certainty
and relieve them of the litigation and other costs of disputes over
classification and misclassification.'' Weirich Consulting & Mediation
(Weirich Consulting) commented in support of the salary level change
because it will make it easier ``to determine more efficiently--and
without needless litigation--whether or not particular employees are
exempt.'' Other commenters representing employers disagreed, however,
with Jackson Lewis, NAM, and the Wage and Hour Defense Institute
predicting that finalizing the proposed salary level would increase
(rather than decrease) litigation. Jackson Lewis commented that the
duties test is the main driver of litigation over the EAP exemption,
and ``there will be no end to litigation'' so long as employers must
continue to apply the standard duties tests to employees earning above
the salary threshold. Jackson Lewis and NAM further asserted that the
rule will result in additional litigation brought by ``very
dissatisfied'' newly overtime-protected employees. Finally, Fisher &
Phillips commented that the ``collateral results'' of selecting a
particular salary level, including avoiding or reducing litigation, are
not appropriate factors for setting the salary level required for the
EAP exemption.
As we stated in the NPRM, the number of wage and hour lawsuits
filed in federal courts increased substantially in the period between
2001 and 2012, from approximately 2,000 to approximately 8,000 per
year, with stakeholders advising the Government Accountability Office
that one of the reasons for the increased litigation was employer
confusion about which workers should be classified as EAP exempt. See
80 FR 38531. Thus, these statistics support the Department's conclusion
that the current standard salary level was not effective in 2004 at
distinguishing between exempt and nonexempt workers and is
substantially less effective today. Litigation under the FLSA remains
high, with approximately 8,000 FLSA cases continuing to be filed each
year.\51\
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\51\ See http://www.uscourts.gov/statistics/table/c-2/statistical-tables-federal-judiciary/2014/12/31; http://www.uscourts.gov/statistics/table/c-2/federal-judicial-caseload-statistics/2015/03/31.
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Although we did not establish the standard salary level in this
Final Rule for the purpose of reducing litigation, we believe that
reduced litigation will be one of the beneficial impacts of that
increase. The salary level will once again serve as a clear and
effective line of demarcation, thereby reducing the potential for
misclassification and litigation. See Weiss Report at 8 (the salary
tests prevent ``the misclassification by employers of obviously
nonexempt employees, thus tending to reduce litigation. They have
simplified enforcement by providing a ready method of screening out the
obviously nonexempt employees, making an analysis of duties in such
cases unnecessary.''). Given the new standard salary level, there will
be 9.9 million fewer white collar employees for whom employers could be
subject to
[[Page 32420]]
potential litigation regarding whether they meet the duties test (4.2
million currently EAP-exempt employees who will be newly entitled to
overtime because they earn less than the new standard salary and 5.7
million overtime-eligible white collar employees paid between $455 and
$913 per week whose exemption status no longer depends on the
application of the duties test).\52\
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\52\ The Department estimates that 732,000 of these white collar
salaried workers are overtime-eligible but their employers do not
recognize them as such. See section VI.C.ii.
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7. Comments About Non-Profit Employers
A substantial number of commenters also addressed the impact that
the proposed standard salary would have on non-profit employers. While
many of the concerns that the non-profit employers expressed were the
same as those identified by other employers, some of these commenters
also addressed particular concerns that they believe they would face
due to their non-profit status.
Many non-profit employers, including Habitat for Humanity, the
National Multiple Sclerosis Society, the New Jersey Association of
Mental Health and Addiction Agencies, Operation Smile, Catholic
Charities, and the U.S. Public Interest Research Group (USPIRG),
emphasized that non-profits generally pay lower salaries than for-
profit employers, and therefore the proposed salary level would not
serve as an effective dividing line between employees performing exempt
and overtime-protected work in the non-profit sector.
For example, USPIRG stated that 75 percent of employees it has
classified as exempt receive a salary below the 40th percentile of
full-time salaried workers nationally. Operation Smile commented that
the proposed standard salary would increase its payroll costs by nearly
$1 million per year and affect more than 50 percent of its workforce.
Habitat for Humanity similarly stated that the majority of its
affiliates pay their highest paid employee less than $50,440 and
estimated that approximately 40 percent of its affiliates' staff
members would be directly affected by the proposed salary increase.
A number of non-profit commenters, including the Alliance for
Strong Families and Communities, ANCOR, Catholic Charities, Easter
Seals, Habitat for Humanity, and USPIRG, emphasized that they do not
have the same ability as other employers to increase prices or reduce
the profits paid to shareholders to compensate for the increased costs
of the proposed salary; some noted this is because the prices for the
services they provide are set in government contracts or by Medicaid,
or because their revenue is based on grants reflecting labor costs at
the time the grant is made and there may be no option for seeking an
increase in funding. Several nonprofits expressed concern that they are
constrained in their ability to increase salaries for their staff
because funders evaluate them based on their ability to keep overhead,
including salary costs, low, or because the terms of their grants may
strictly limit how much of the grant can be allocated for overhead.
See, e.g., Boy Scouts of America; Food Bank of Northern Nevada; The
Groundwater Foundation; Operation Smile. Based upon these funding
issues, many commenters stated that the unintended consequence of the
increased standard salary level would be a decline in the quantity or
quality of the critical services they provide to vulnerable
individuals. See, e.g., CUPA-HR; Father Flanagan's Boys' Home; Lutheran
Services in America; National Multiple Sclerosis Society; Salvation
Army. Therefore, many non-profit organizations requested that the
Department provide special relief for non-profits such as: An exemption
from the salary requirement; a reduced salary level for non-profits; an
incremental phased-in increase of the salary level over a period of a
year or more for non-profits; a delayed implementation date for non-
profits; and the elimination of automatic updating for non-profits.
See, e.g., Alliance for Strong Families and Communities; Boy Scouts of
America (BSA); Boys and Girls Clubs of America; Habitat for Humanity;
Independent Sector; United Community Ministries; YWCA.
Nevertheless, despite their concerns regarding the potential impact
of the proposed salary level, many non-profit employers expressed their
general support for the intent and purpose of the rule. See, e.g.,
Catholic Charities; Easter Seals; Independent Sector; Maryland
Nonprofits; PathStone Corporation; United Community Ministries; YWCA.
Moreover, some non-profits, citing their role as both employers and
service providers, supported the application of the NPRM to non-profits
as proposed. For example, PathStone Corporation, and a comment
submitted by CASA on behalf of 21 additional non-profit organizations,
stated they fully supported the proposed regulation, with the joint
CASA comment emphasizing that the ``justice we seek for our clients in
the world must also exist within our own organizations.'' Similarly,
Maryland Nonprofits commented that ``[t]he nonprofit community
recognizes better than most the harsh economic realities that lead to
this proposed rule, and we strongly endorse its purpose.''
Other commenters indicated that the impact on non-profit employers
would not be as significant as most non-profits feared. For example,
the comment submitted by 57 labor law professors noted that an
economist found that management employees working for non-profits
earned an average of $34.24 per hour in 2007, which far exceeds the
proposed salary level, and that they presumably earn more than that
now. Therefore, they concluded that the regulations ``should not have a
deleterious effect on these valuable organizations or their efforts to
accomplish their important missions.'' EPI also stated that, where a
non-profit is engaged in revenue-producing activities and, thus, is
competing with for-profit businesses, it ``is only fair'' that ``it
should be held to the same employment standards'' to achieve a level
playing field with regard to the employees who are involved with that
commercial business or who are engaged in interstate commerce. Other
commenters, such as the Wisconsin Association of Family and Children's
Agencies, questioned the wisdom of a non-profit exemption, explaining
that for-profit agencies may perform the same services as non-profits
and rely on the same government funding streams and a non-profit
exemption would not help the similarly situated for-profit service
providers.
The Department recognizes and values the enormous contributions
that non-profit organizations make to the country. Nonprofit
organizations provide services and programs that benefit many
vulnerable individuals in a variety of facets of life, including
services that benefit the vulnerable workers who the Department also
works to protect by ensuring that their workplaces are fair, safe, and
secure. In response to the commenters' concerns, we note that (as
discussed in detail above) we have modified the proposed salary level
to account for the fact that salaries are lower in some regions than
others. This change yields a salary at the low end of the historical
range of short test salaries. This lower final salary level will also
provide relief for non-profit employers, just as it does for employers
in low-wage industries.
However, regarding the commenters' suggestions that we create a
special exemption from the salary requirement, a lower salary level, a
delayed
[[Page 32421]]
implementation date, or a phase-in period for non-profits, we note that
the Department's EAP exemption regulations have never had special rules
for non-profit organizations; the employees of non-profits have been
removed from minimum wage and overtime protection pursuant to the EAP
exemptions only if they satisfied the same salary level, salary basis,
and duties tests as other employees.
The Department concludes that such special treatment is not
necessary or appropriate. As the comment from the 57 labor law
professors noted, a study of National Compensation Survey data showed
that the average hourly wage of full-time management employees in the
not-for-profit sector was $34.24 per hour in 2007 ($1,369 per 40-hour
workweek), which substantially exceeds the Final Rule's required salary
of $913 per week.\53\ The average hourly wage for such management
workers at non-profits had increased to $38.67 by 2010 ($1,547 per 40-
hour week), which is more than 50 percent higher than the 2016 required
standard salary.\54\ Moreover, the average hourly wages of non-profit
employees are not uniformly lower than those of employees in other
sectors. For example, in 2007 the average hourly wages of both full-
time business and financial operations employees and computer and
mathematical science employees working at non-profits, $26.49 and
$32.00 per hour, respectively, exceeded the average hourly earnings of
such workers employed in State government.\55\ Wages of full-time
workers in healthcare practitioner and technical occupations for non-
profits averaged $28.85 per hour in 2007, higher than those for
employees in the same occupations in State and local governments
($23.89 and $27.30, respectively). Similarly, the 2007 average earnings
of registered nurses were $30.80 per hour at non-profits, higher than
those of registered nurses at private establishments ($30.58) and at
State and local governments ($29.60).\56\
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\53\ See http://www.bls.gov/opub/mlr/cwc/wages-in-the-nonprofit-sector-management-professional-and-administrative-support-occupations.pdf. The non-profit series was stopped in 2010 and the
2007 report on management, professional and administrative support
occupations is the most recent data available.
\54\ See http://www.bls.gov/ncs/ncswage2010.htm (Table 33).
\55\ See http://www.bls.gov/opub/mlr/cwc/wages-in-the-nonprofit-sector-management-professional-and-administrative-support-occupations.pdf.
\56\ See http://www.bls.gov/opub/mlr/cwc/wages-in-the-nonprofit-sector-healthcare-personal-care-and-social-service-occupations.pdf.
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Based on CPS data, the Department projects that for FY 2017, the
median weekly earnings for affected workers in non-profits will be
$741.68 while the median weekly earnings of affected workers in the
private sector will be $745.54. The Department recognizes however, that
non-profit entities may have a higher share of affected workers than
for-profit entities, but does not believe that this will unduly impact
this sector. If all affected workers in the non-profit sector who
regularly work overtime were increased to the new salary level this
would increase the total amount that non-profits pay EAP workers by 0.5
percent, compared to an increase of 0.3 percent in other sectors.\57\
Therefore, the Department concludes that treating non-profit employers
differently than other employers, such as by creating a special salary
level or an extended phase-in period is not appropriate and is not
necessary, particularly given the fact that the Final Rule modifies the
proposed rule by basing the standard salary level on salaries in the
lowest-wage Census Region.
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\57\ This is an overestimate as to both the non-profit and for-
profit sectors. As explained in section VI.D. iv., we anticipate
employers will increase the salary level only for workers for whom
it is less expensive to pay the updated salary level than pay
overtime.
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Finally, the Department also received comments from a number of
non-profit higher education institutions. As discussed above, some
commenters from the higher education community also asked for guidance
on the application of the EAP exemption to educational institutions.
Additionally, however, several commenters expressed concern about the
impact that the Final Rule would have on higher education, with some
suggesting a lower salary level for educational institutions. See,
e.g., Iowa Association of Community College Trustees; CUPA-HR; Purdue
University; South Carolina Independent Colleges and Universities. We
recognize that higher education is a complex and important sector in
our economy, including a variety of both private and public
institutions, from small community colleges to large research
institutions.
Commenters representing research institutions raised concerns about
the impact of the proposed rule on postdoctoral researchers. For
example, CUPA-HR noted that the National Institutes of Health (NIH)
stipend levels for post-doctoral researchers are ``well below'' the
proposed salary level and that post-doctoral researchers with less than
five years of experience would no longer meet the salary level for
exemption. The Department notes that the Final Rule salary level based
on the 40th percentile in the lowest-wage Census Region addresses some
of these concerns and results in a salary level met by the NIH FY 2016
stipend level for post-doctoral researchers with at least three years
of experience and is only $208 a year above the stipend level for a
post-doctoral researcher with two years of experience.
8. Other Comments
Like non-profit employers, other commenters, including local
governments,\58\ Indian tribes, for-profit entities receiving
government funding, and commenters writing on behalf of small
businesses, asserted that they do not have the same ability as other
employers to increase prices or reduce their profits.\59\ See, e.g.,
BFT Holding; Charlotte County Government; Jamestown S'Klallam Tribe.
Some commenters representing these groups, as well as other commenters,
requested special treatment for certain industries or employers. For
example, some small businesses and commenters representing them,
including the American Association for Enterprise Opportunity,
California Association for Micro Enterprise Opportunity, and WIPP,
requested an exemption for small entities from the salary level or from
the FLSA's requirements generally. Likewise, the Gila River Indian
Community and the Ute Mountain Ute Tribe submitted comments urging the
Department to ``open consultation with Indian tribes on the use of a
lower salary threshold for tribal entities'' based on ``the unique
economic and demographic factors that tribes face.'' The Department did
not propose special treatment for small businesses, tribal governments,
or other entities, and did not request comment on these issues. The
Department believes such special treatment is not necessary given that
the Final Rule modifies the proposed rule by basing the standard salary
level on salaries in the lowest-wage Census Region and this lower final
salary level will provide relief for these stakeholders.
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\58\ The Department notes that state and local governments have
greater options for satisfying their overtime obligations than do
private employers. In particular, under certain conditions, state or
local government agencies may provide their employees with
compensatory time off (comp time) instead of cash payment for
overtime hours. The comp time must be provided at a rate of one-and-
one-half hours for each overtime hour worked. For example, if a
newly overtime-eligible state government employee works 44 hours in
a single workweek, he would be entitled to 6 hours of compensatory
time off. See 29 CFR part 553.
\59\ Comments from state and local governments and from Indian
tribes are also addressed in section VIII.
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Conversely, some commenters requested that the Department apply the
[[Page 32422]]
salary level test to employees who have historically not been subject
to that test. For example, the Department received multiple comments
from teachers, university faculty, and their representatives, asking us
to repeal Sec. 541.303(d), which provides that the salary level
requirement does not apply to teaching professionals. See, e.g.,
National Association for the Education of Young Children (NAEYC); NWLC;
New Faculty Majority Foundation; SEIU. As the NAEYC acknowledged in its
comment, this request is ``beyond the scope'' of the NPRM, which did
not propose changes to or invite comment on Sec. 541.303(d) or on
Sec. 541.600(e), which also provides that the salary requirement does
not apply to teachers and certain other professionals. See also NWLC;
SEIU. The Department notes that regardless of their salary, teachers
qualify for the professional exemption only if they have a primary duty
of teaching, tutoring, instructing or lecturing in the activity of
imparting knowledge and are employed and engaged in this activity as a
teacher in an educational establishment by which they are employed.\60\
See Sec. 541.303(a).
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\60\ The National Head Start Association and several other
commenters associated with Head Start asked the Department to
consider adopting the position that all Head Start and Early Head
Start facilities are ``educational establishments,'' and therefore
that teachers at these facilities can meet the professional
exemption. The NPRM did not propose changes to or invite comment on
Sec. 541.303(a) or Sec. 541.204(b) (which defines ``educational
establishment''), and the Final Rule makes no changes to these
sections.
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A number of comments, including a joint comment from the AIA-PCI,
requested that the Department prorate the new salary level for part-
time employees. The Department declines this request. That employers
currently ``can afford to pay part-time exempt employees the full
salary required for exempt status, even if they work just 15 or 20
hours per week,'' as Seyfarth Shaw noted in support of this request,
merely underscores the need to significantly increase the 2004 salary
level. The Department has never prorated the salary level for part-time
positions, and we considered and rejected a special rule for part-time
employees performing EAP duties in 2004. See 69 FR 22171. The
Department continues to believe that such a rule would be difficult to
administer, and notes that the FLSA does not define full-time
employment or part-time employment, but leaves this matter to be
determined by employers. Employees hired to work part time, by most
definitions, do not work in excess of 40 hours in a workweek, and
overtime pay is not at issue for these employees. An employer may pay a
nonexempt employee a salary to work part time without violating the
provisions of the FLSA so long as the salary equals at least the
minimum wage when divided by the actual number of hours the employee
worked. See FLSA2008-1NA (Feb. 14, 2008). Employers can meet this
standard with a salary of as little as $145 for twenty hours of work
per week, and $217.50 for 30 hours of work per week--far below even the
2004 salary level.\61\
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\61\ SIFMA noted that some employees who will not meet the
salary threshold because they work part time, may nevertheless have
responsibilities during certain periods (for example, tax season)
that require them to work more than 40 hours in a week. In such
instances, if the employee earns less than the standard salary
level, the employee is eligible to receive overtime premium pay for
hours worked over 40 in a week.
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Finally, a small number of commenters, including the National
Automobile Dealers Association, suggested that the Department should
eliminate the salary level test entirely, so that the exempt status of
every employee would be determined on the basis of their job duties and
responsibilities alone. The Department has repeatedly rejected this
approach, and we do so again in this rulemaking. The Department has
long recognized that ``the amount of salary paid to an employee is the
`best single test' of exempt status,'' and is the principal delimiting
requirement preventing abuse. 69 FR 22172; Stein Report at 24. Further,
as the Department explained in 2004, eliminating the salary test is
contrary to the goal of simplifying the application of the exemption,
which the President has directed us to do in this rulemaking, and would
require a ``significant restructuring of the regulations,'' including
the ``use of more rigid duties tests.'' 69 FR 22172.
B. Special Salary Tests
i. American Samoa
As explained in our proposal, the Department has historically
applied a special salary level test to employees in American Samoa
because minimum wage rates there have remained lower than the federal
minimum wage. See 80 FR 38534. The Fair Minimum Wage Act of 2007, as
amended, provides that industry-specific minimum wages rates in
American Samoa will increase by $0.40 on September 30, 2018, and
continue to increase every three years thereafter until each equals the
federal minimum wage. See Sec. 1, Public Law 114-61, 129 Stat. 545
(Oct. 7, 2015). The minimum wage in American Samoa currently ranges
from $4.58 to $5.99 an hour depending on the industry,\62\ and so the
disparity with the federal minimum wage is expected to remain for the
foreseeable future. Accordingly, the Department proposed to continue
our longstanding practice of setting the special salary level test for
employees in American Samoa at approximately 84 percent of the standard
salary level, which would have resulted in a salary of $816 based on
fourth quarter 2015 data for full-time salaried workers nationwide.
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\62\ See WHD Minimum Wage Poster for American Samoa, available
at: http://www.dol.gov/whd/minwage/AmericanSamoa/ASminwagePoster.pdf.
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The Department received only one comment on this aspect of our
proposal--Nichols Kaster supported the proposed increase. We conclude
that the proposed methodology remains appropriate, and the Final Rule
accordingly sets the special salary level for American Samoa at 84
percent of the standard salary level set in the rule, which equals $767
per week. The Department has revised Sec. 541.600(a) accordingly.
ii. Motion Picture Producing Industry
The Department has permitted employers to classify as exempt
employees in the motion picture producing industry who are paid at a
base rate of at least $695 per week (or a proportionate amount based on
the number of days worked), so long as they meet the duties tests for
the EAP exemptions. See Sec. 541.709. This exception from the ``salary
basis'' requirement was created in 1953 to address the ``peculiar
employment conditions existing in the [motion picture] industry,'' 18
FR 2881 (May 19, 1953), and applies, for example, when a motion picture
industry employee works less than a full workweek and is paid a daily
base rate that would yield at least $695 if six days were worked. See
id. Consistent with our practice in the 2004 Final Rule, the Department
proposed to increase the required base rate proportionally to the
proposed increase in the standard salary level test, resulting in a
proposed base rate of $1,404 per week (or a proportionate amount based
on the number of days worked). This method would have resulted in a
base rate of $1,487 based on fourth quarter 2015 data for full-time
salaried workers nationwide.
The Department did not receive any substantive comments on this
subject; two commenters, Nichols Kaster and the UAW, offered general
support for this proposal. The Final Rule adopts the methodology set
forth in our proposal, and using the new standard salary level
[[Page 32423]]
($913) results in a base rate of $1,397 per week (or a proportionate
amount based on the number of days worked).\63\ The Department has
revised Sec. 541.709 to incorporate this change.
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\63\ The Department calculated this figure by dividing the new
salary level ($913) by the current salary level ($455), and then
multiplying this product (rounded to the nearest hundredth) by the
current base rate ($695). This produces a new base rate of
$1,396.95, which we rounded to the nearest whole dollar ($1397).
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iii. Other Comments Requesting Special Salary Tests
The Department also received approximately a dozen comments
concerning application of the proposed salary level to Puerto Rico.
Nearly all of these commenters urged the Department to either exempt
Puerto Rico from the updated standard salary level requirement (thus
keeping the salary level at $455) or to reinstate a special salary
level test for Puerto Rico (set between the current and proposed salary
levels).\64\ In 1949, the Department established a special salary level
for Puerto Rico because its minimum wage rate was below the FLSA
minimum wage. See 14 FR 7705-06 (Dec. 24, 1949); Weiss Report at 21.
The Fair Labor Standards Amendments of 1989 removed Puerto Rico from
the special minimum wage provisions and instead applied the section
6(a)(1) minimum wage to Puerto Rico. See Sec. 4, Public Law 101-157,
103 Stat. 938 (Nov. 17, 1989). This change eliminated the justification
for maintaining a special salary test in Puerto Rico, and so in the
2004 Final Rule we established that the standard salary level test
applies to Puerto Rico. Puerto Rico continues to be subject to the
section 6(a)(1) minimum wage, and the Department has consistently
maintained a uniform salary level for all states and also for all
territories subject to the FLSA minimum wage.
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\64\ Commenters included the Cadillac Group of Companies,
Caribbean Restaurants, the Puerto Rico Bankers Association, the
Puerto Rico Chamber of Commerce, the Puerto Rico Hotel & Tourism
Association, the Puerto Rico Manufacturers Association, the
Secretary of Labor for Puerto Rico (the Honorable Vance Thomas), the
Training and Labor Affairs Advisory and Human Resources
Administration Office (OCALARH, by its Spanish acronym), one
individual commenter, and one anonymous commenter. Two individual
employee commenters from Puerto Rico offered general support for the
Department's proposal.
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C. Inclusion of Nondiscretionary Bonuses, Incentive Payments, and
Commissions in the Salary Level Requirement
As indicated in the NPRM, the Department has consistently assessed
compliance with the salary level test by looking only at actual salary
or fee payments made to employees and, with the exception of the total
annual compensation requirement for highly compensated employees, has
not included bonus payments of any kind in this calculation. During
stakeholder listening sessions held prior to the publication of the
NPRM, several business representatives asked the Department to include
nondiscretionary bonuses and incentive payments as a component of any
revised salary level requirement. These stakeholders conveyed that
nondiscretionary bonuses and incentive payments are an important
component of employee compensation in many industries and stated that
such compensation might be curtailed if the standard salary level was
increased and employers had to shift compensation from bonuses to
salary to satisfy the new standard salary level.
In recognition of the increased role bonuses play in many
compensation systems, and as part of the Department's efforts to
modernize the overtime regulations, the Department sought comments in
the NPRM regarding whether the regulations should permit
nondiscretionary bonuses and incentive payments to count towards
satisfying a portion of the standard salary level test for the
executive, administrative, and professional exemptions.\65\
Specifically, the Department asked whether employers should be allowed
to use nondiscretionary bonuses and incentive payments, paid no less
often than monthly, to satisfy up to 10 percent of the standard salary
level test. To ensure the integrity of the salary basis requirement,
the Department stressed the importance of strictly limiting the amount
of the salary requirement that could be satisfied through the payment
of nondiscretionary bonuses and incentive pay, as well as the maximum
time period between such payments. The Department did not propose any
changes to how bonuses are treated under the ``total annual
compensation'' requirement of the HCE test, and stated that we were not
considering changing the exclusion of board, lodging, or other
facilities from the salary calculation or expanding the salary level
test calculation to include discretionary bonuses, payments for
medical, disability, or life insurance, or contributions to retirement
plans or other fringe benefits. See, e.g., 80 FR 38535-36, 38537 n.36.
However, the Department did seek comment on the appropriateness of
counting commissions toward the salary level requirement.
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\65\ Promised bonuses such as those announced to employees to
induce them to work more efficiently or to remain with the firm are
considered non-discretionary. See 29 CFR 778.211(c). Examples
include individual or group production bonuses, and bonuses for
quality and accuracy of work. Incentive payments, including
commissions, are also considered non-discretionary.
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The requirement that exempt employees be paid on a salary basis has
been a part of the Department's part 541 regulations since 1940. As the
Department said at that time, ``a salary criterion constitutes the best
and most easily applied test of the employer's good faith in claiming
that the person whose exemption is desired is actually of such
importance to the firm'' that he or she is properly within the
exemption. Stein Report at 26, see also id. at 19, 36. Since 1940,
therefore, the regulations have required that an exempt EAP employee be
paid a predetermined and fixed salary that is not subject to reduction
because of variations in the quality or quantity of work performed.
More recently, the Department has noted ``that payment on a salary
basis reflects an employee's discretion to manage his or her time and
to receive compensatory privileges commensurate with exempt status.''
69 FR 22177. While, as the Department noted in the NPRM, employers are
allowed to pay additional compensation beyond the required salary in
the form of bonuses, those payments have not counted towards the
payment of the required minimum salary level. The Department's
discussion in the NPRM of including nondiscretionary bonus payments in
the standard salary level was informed by our concern that permitting
the standard salary level to be satisfied by bonus payments that
frequently correlate to the quantity and quality of work performed
could undermine the utility of the salary basis requirement in
identifying bona fide EAP employees.
The Department received a variety of comments concerning whether
the regulations should permit nondiscretionary bonuses and incentive
payments to satisfy a portion of the standard salary level test.
Commenters representing employers generally supported this change as an
improvement over the current regulations, though many objected that the
option the Department was considering was too restrictive. Most of the
commenters representing employees that addressed this idea opposed it
on the grounds that it would complicate the test for exemption and
undermine the worker protections established by the salary basis
requirement.
Commenters representing employers offered a range of reasons for
generally supporting the inclusion of nondiscretionary bonuses and
incentive
[[Page 32424]]
payments. Many commenters, including ACRA, the National Association of
Convenience Stores (NACS), and the NRA, agreed that such payments are a
key part of exempt employees' compensation in their industries. For
example, EBS Building Supplies stated that its managers ``can earn as
much in bonus payments as they earn in regular salary during the
year,'' and Mill Creek Companies stated that nondiscretionary
performance incentives can account for ``up to 40% of a person's total
compensation and are a most critical part of our strategy to align the
goals of first line supervisors and professionals with the goals of the
company.''
WorldatWork conducted a survey of its human resources manager
members and found that ``62% of respondents said their employers offer
nondiscretionary incentive bonuses tied to productivity and/or
profitability.'' Several trade associations reported similar feedback
from their members. The World Floor Covering Association stated that
its ``members have indicated that many managers and administrators
receive bonuses based on the sales of the stores that they manage or
oversee,'' and the National Pest Management Association stated that 93
percent of its member companies reported providing some form of
nondiscretionary bonuses. The Chemical Industry Council of Illinois and
the National Council of Farmer Cooperatives respectively emphasized
that nondiscretionary bonuses ``are an integral part'' or ``play an
important role'' within an employee's total compensation package. RILA
noted that in the retail industry ``many retail managers and other
exempt employees earn bonuses or other incentive payments designed to
encourage a sense of ownership consistent with their important
leadership roles within the organization,'' and that ``[c]ounting non-
discretionary bonuses toward the minimum threshold for exemption is
consistent with the purpose of the salary level test--the payment,
criteria, or amount of these bonuses often reflects the exempt status
of the recipients.''
Many commenters that opposed the Department's proposed increase to
the standard salary level, including CalChamber Coalition, Fisher &
Phillips, FMI, Littler Mendelson, and the National Association of
Professional Insurance Agents, acknowledged that allowing employers to
satisfy a portion of the salary level with bonuses and incentive
payments would to some extent mitigate the financial burden of the
proposed increase. Other commenters, including IFA and the Sheppard
Mullin law firm, stated that not allowing nondiscretionary bonuses and
incentive payments to satisfy some portion of the increased salary
level would likely reduce the prevalence of those forms of
compensation.
Among commenters that supported the inclusion of nondiscretionary
bonuses and incentive payments in the standard salary guarantee amount,
many objected that the option considered in the Department's NPRM was
too restrictive to be of much practical use for employers. For example,
several commenters representing employers criticized the Department's
proposal to cap the crediting of nondiscretionary bonuses or incentive
payments at no more than 10 percent of the standard salary level,
noting that bonuses, incentive payments, and commissions often comprise
a far greater portion of an exempt employee's total compensation. The
Chamber stated that ``unless the Department reconsiders its proposed
$50,440 salary level, a limit of 10 percent (or, $5,044) is too low to
provide any relief or make the additional administrative burdens worth
the effort.'' FMI, the National Association of Truck Stop Operators,
Printing Industries of America, RILA, Weirich Consulting, and a number
of other commenters requested that the Department allow such
compensation to count for up to 20 percent of the standard salary
level. Other commenters suggested a higher percentage, including
CalChamber Coalition (at least 30 percent), ACRA (at least 40 percent),
and HR Policy Association (50 percent). Many commenters, including
Fisher & Phillips, the National Beer Wholesalers Association, and the
National Pest Management Association, opposed the imposition of any
percentage cap on the proportion of the salary level test that could be
satisfied with such payments. Several commenters, however, supported
the Department's 10 percent limitation. See, e.g., Concord Hospitality
Enterprises; Fraternity Executive Association.
Commenters also criticized the Department's decision to consider
crediting nondiscretionary bonuses and incentive payments toward the
salary level test only if they are paid on a monthly or more frequent
basis. According to AIA-PCI and PPWO, such a limitation fails to
account for the fact that bonus payments ``are typically made less
often than monthly because they are tied to productivity, revenue
generation, profitability, and other larger and longer-term business
results that can fluctuate significantly on a month-to-month basis.''
See also NRA. AH&LA stated that many ``supplemental compensation
programs in the lodging industry are not structured to be paid with
such frequency and it would place a significant administrative burden
on employers to calculate and pay incentive compensation on a monthly
or more frequent basis.'' AH&LA and many other commenters requested
that the Department credit bonuses and incentive payments paid on an
annual basis against the salary level. HR Policy Association pointed
out that bonuses paid annually are already included within the ``total
compensation requirement'' under the HCE test, while the Society of
Independent Gasoline Manufacturers (SIGMA) stated that ``permitting
employers to count bonuses annually incentivizes them to hire employees
on an annual basis, ultimately promoting job security and long-term
employment.'' In the absence of crediting annual bonuses, SIGMA and
several other commenters, including IABI, AIA-PCI, the American
Institute of Certified Public Accountants, PPWO, and Weirich
Consulting, urged the Department to credit bonuses and incentive
payments paid on a quarterly basis or less frequently. Other commenters
favored the quarterly frequency outright. See, e.g., American Resort
Development Association; Fraternity Executives Association. Fisher &
Phillips and the NACS opposed imposing any timeframe limitation, but
conceded that ``experience suggests [quarterly] is a not-uncommon
frequency for the payment of such amounts.''
Several commenters requested that the Department allow employers to
make catch-up (or ``true-up'') payments to eliminate the risk of non-
compliance in the event that an employee's bonuses or incentive
payments drop such that the employee fails to satisfy the salary level
requirement in a given period. For example, SIFMA wrote that they saw
``no basis for distinguishing the use of true-up payments outside of
the context of highly compensated employees,'' and remarked that
``[a]llowing true-up payments to count helps ensure that exempt
employees are receiving the guaranteed income they anticipated and is
consistent with the historical salary basis approach of ensuring
guaranteed income.'' If annual catch-up payments are not permitted, NRA
urged the Department ``to permit employers to make catch-up payments
based on when they pay the bonuses, i.e., monthly, semi-annually, or
quarterly.''
Many commenters that supported the crediting of incentive payments
urged the Department to also allow employers to credit commissions.
Several commenters agreed with PPWO that ``all forms of compensation
should be used
[[Page 32425]]
to determine whether the salary level has been met,'' pointing out that
the CPS earnings data for nonhourly employees that the Department is
using to derive the standard salary level includes discretionary
bonuses and commissions. Many commenters disputed the Department's
observation in the NPRM that ``employees who earn commissions are
usually sales employees who . . . are generally unable to satisfy the
standard duties test,'' 80 FR 38536. AT&T stated that it ``has
management positions whose responsibilities involve the supervision of
sales teams and support sales channels that receive commissions as part
of their salaries and that have been found to be exempt under the
executive and administrative exemptions,'' and the Chamber and FMI
likewise commented that in the real estate and insurance industries
``[m]any exempt employees who perform little direct sales work share
commissions.'' A few other commenters pointed to a 2006 opinion letter
advising that certain ``registered representatives'' in the financial
services industry qualify for the administrative exemption even though
they receive commissions and bonuses in addition to their salary. See
FLSA2006-43 (Nov. 27, 2006).
Other commenters urged the Department to count discretionary
bonuses toward the salary level. For example, PPWO stated that ``[s]uch
payments are in many ways even more reflective of an individual
employee's efforts and contributions (and by implication their exercise
of independent judgment and other characteristics of the duties' test)
than nondiscretionary bonuses.''
Many commenters opposed permitting nondiscretionary bonuses and
incentive payments to satisfy a portion of the standard salary level
test. Some commenters stated that nondiscretionary bonuses and
incentive payments do not indicate an employee's exempt status. For
example, NELA and Rudy, Exelrod, Zieff & Lowe wrote that the types of
nondiscretionary bonuses described in the Department's regulations--
including ``bonuses that are announced to employees to induce them to
work more steadily, rapidly, or efficiently; bonuses to remain with the
employer; attendance bonuses; individual or group production bonuses;
and bonuses for quality and accuracy of work''--are ``intended to
incentivize workers of all types to perform their duties well; but, do
not afford them any benefits of ownership.'' These commenters noted
further that lower level employees whom they have represented also
received these types of bonuses, and thus, the commenters concluded
that such bonuses ``have no bearing on whether an employee should be
excluded from overtime requirements.'' The Georgia Department of
Administrative Services and the Mississippi State Personnel Board each
cautioned that there is ``no guarantee that the work rewarded by the
bonus or incentive payment will be FLSA exempt in nature,'' while KDS
Consulting stated that crediting bonuses and incentive payments would
undermine the premise ``that management values the salaried worker's
position for some reason outside of time and task.''
Several commenters asserted that allowing nondiscretionary bonuses
and incentive payments to satisfy a portion of the standard salary
level would dramatically complicate application of the EAP exemptions,
and introduce periodic uncertainty regarding the exempt status of
employees who would need such payments to meet the salary level
requirement. Nichols Kaster stated that allowing nondiscretionary
bonuses and incentive payments to satisfy 10 percent of the standard
salary level ``could alter employees' exempt status on a weekly
basis,'' and put employers in a position where they ``would incur
substantial compliance costs reviewing their payroll on a weekly or
monthly basis to determine which employees satisfied the salary basis
test'' (emphasis in comment). AFL-CIO and IAFF each wrote that the
proposal would be ``in direct contradiction to the purpose of the
proposed rule, which is to clarify, streamline and simplify the
regulations,'' while NELA and Rudy, Exelrod, Zieff & Lowe commented
that ``[a]dding this component to the threshold inquiry would only make
the calculation more confusing and spur additional transaction costs to
what should be a straightforward computation.'' Nichols Kaster, NELA,
and The Labor Board, Inc., each warned that allowing bonuses to satisfy
a portion of the standard salary level would likely increase FLSA
litigation, while AFL-CIO noted that permitting nondiscretionary
bonuses and incentive payments to satisfy a portion of the standard
salary level ``could lead to anomalous results'' where employees with
similar job duties could be classified differently depending on the
criteria for the bonuses.
Commenters also contended that allowing nondiscretionary bonuses
and incentive payments to satisfy a portion of the standard salary
level would undermine the scheduling flexibility and income security
associated with exempt status, as codified in the salary basis
requirement. Nichols Kaster opined that such a change ``erodes the
salary basis test . . . [by] replac[ing] the certainty of a salary with
the uncertainty of fluctuating compensation,'' and would have the
practical effect of reducing the standard salary level. NELA and Rudy,
Exelrod, Zieff & Lowe agreed, stating that the Department's proposal
``runs contrary to the stated purpose of the salary basis test, which
is to make sure exempt employees are guaranteed a minimum level of
income that is dependable and predictable to meet their families'
monthly expenses before they are exempted from the protections of the
overtime provisions of the FLSA.'' These commenters further indicated
that ``[c]hanging the salary threshold calculation to include
nondiscretionary bonuses would also create a perverse incentive to
employers to move towards implementing more deferred compensation pay
structures.'' Nichols Kaster wrote that ``an exempt employee who
chooses not to leave work early for a parent-teacher conference for
fear of missing a weekly production metric loses some of the benefit of
her exempt status: The receipt of her full pay for any week in which
she performs any work without regard to the number of days or hours
worked'' (internal quotation marks and citation omitted). Moreover,
Nichols Kaster asserted that ``an `attendance bonus' that penalizes an
employee for partial day absences would be nothing more than an end-
around the existing prohibition on partial day deductions from
salary.''
Finally, some commenters warned of possible negative consequences
that might result from allowing bonuses and incentive payments to
satisfy a portion of the standard salary level. For example, the
Georgia Department of Administrative Services and the New Mexico State
Personnel Board stated that crediting such payments would create ``a
competitive disadvantage for public sector employers,'' because public
employers are not able to provide non-discretionary bonuses and
incentive payments. KDS Consulting speculated that allowing bonuses and
incentive payments to satisfy a part of the standard salary level would
undermine the incentivizing value of such payments, to the extent that
employers must pay them to maintain the exempt status of their
employees.
After considering the comments, the Department has decided to
permit nondiscretionary bonuses and incentive payments (including
commissions) to satisfy up to 10 percent of the standard weekly salary
level test, provided these forms of compensation are paid at least
quarterly. The Final Rule revises
[[Page 32426]]
Sec. 541.602(a) to incorporate this new flexibility.
The Department analyzed comments mindful of the need to ensure that
the salary level test accounts for employer payment practices without
compromising the critical function of the salary basis test, which is
to serve as a key indicator of exempt status. Commenters representing
employer interests persuasively explained that nondiscretionary bonuses
are an important part of many employer compensation systems that cover
EAP employees. Modifying the tests for exemption to incorporate this
fact is consistent with the President's directive to modernize the part
541 regulations. The Department also recognizes the concerns expressed
by employee advocates, however, that in some instances nondiscretionary
bonuses may not be indicative of exempt status and that counting such
compensation toward the standard salary level may undermine the
flexibility and income security associated with exempt status. While we
share the concern that some bonus and incentive programs cover both
overtime exempt and overtime-eligible employees, and the correlation of
those programs with exempt status is therefore questionable, we are
persuaded overall that the provision of nondiscretionary bonus and
incentive payments has become sufficiently correlated with exempt
status (for example, as evidence of the overtime exempt employee's
exercise of management skill or exercise of independent judgment) that
its inclusion on a limited basis in the standard salary requirement is
appropriate. However, because such payments also correlate directly or
indirectly in many instances with either the quantity or quality of
work performed, we believe that careful limits must be set on how
nondiscretionary bonuses and incentive pay are applied to the salary
level test.
The Department also sought comments on the appropriateness of
including commissions as part of nondiscretionary bonuses and other
incentive payments that could partially satisfy the standard salary
level test. In the NPRM, we raised the concern that it may be
inappropriate to count commissions toward the salary level because
employees who earn commissions are usually sales employees who--with
the exception of outside sales employees--are generally unable to
satisfy the duties test for the EAP exemptions. Comments from the
Chamber, FMI, AT&T, and others have convinced us that it is not
uncommon for employees who are not sales personnel, such as supervisors
of a sales team, to earn commissions based on the sales of the
employees they supervise. Since such supervisors may satisfy the duties
test, the Department has concluded that it is appropriate to treat
commissions like other types of nondiscretionary bonuses and permit
them to be used to satisfy a portion of the salary level test.
Accordingly, we have concluded that permitting commissions to count
against a limited portion of the standard salary will not undermine the
effectiveness of the salary basis test in identifying exempt employees.
This change will also ensure that exemption status does not depend on
(and that this rulemaking does not interfere with) whether an employer
chooses to label or structure a nondiscretionary incentive payment as a
``bonus'' or as a ``commission.'' This change is also consistent with
the Department's position that certain ``registered representatives''
in the securities and financial services industry who receive
commissions may qualify for the administrative exemption. See FLSA2006-
43 (Nov. 27, 2006).
In the NPRM, the Department stated that we were not considering
expanding the salary level test calculation to include discretionary
bonuses or changing the exclusion of board, lodging, or other
facilities from the salary calculation, a position that the Department
has held consistently since the salary requirement was first adopted.
The Department also declined to consider including in the salary
requirement payments for medical, disability, or life insurance, or
contributions to retirement plans or other fringe benefits. The
Department reemphasizes here that such forms of compensation remain
excluded from the salary level test calculation.
Many commenters asked the Department to increase beyond 10 percent
the portion of the standard weekly salary level employers could satisfy
using nondiscretionary bonuses and incentive payments. After
consideration, the Department declines these requests. Because the
Department has long found that the payment of a fixed predetermined
salary not subject to change based on the quantity or quality of work
is a strong indicator of exempt EAP status, it is important to strictly
limit the percentage of the salary requirement that nondiscretionary
bonuses and incentive payments can satisfy. Accordingly, setting the
limit above 10 percent could undermine the premise of the salary basis
test by depriving workers of a predetermined salary that does not
fluctuate because of variations in the quality or quantity of their
work and thus is indicative of their exempt status.\66\ We believe that
a 10 percent limit is also appropriate given that we are including
nondiscretionary bonuses, incentive payments, and commissions as part
of the salary level test for the first time and the full impact of this
change on determination of EAP status is not yet known. Because this is
the first time we have included nondiscretionary bonuses, incentive
payments, and commissions, the Department may revisit this threshold if
future experience supports additional changes to Sec. 541.602(a)(3).
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\66\ This 10 percent limit concerns an employer's ability to
count nondiscretionary bonuses, incentive payments, and commissions
toward the salary level requirement without violating the salary
bases requirement. This limit does not impact an employer's
continued ability to provide an exempt employee with additional
compensation without losing the exemption or violating the salary
basis requirement, provided the employment arrangement also includes
a guarantee of at least the minimum weekly-required amount paid on a
salary basis. See Sec. 541.604(a).
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The Department takes note of comments from government employers
that expressed their view that inclusion of nondiscretionary bonuses
and incentive payments in the salary level creates a competitive
disadvantage for them. The Department believes that by limiting to 10
percent the amount of nondiscretionary bonuses and commissions that can
count toward the required weekly minimum salary level, we strike an
appropriate balance which allows employers to use expanded sources of
income to meet the required salary level, does not unduly harm
government employers, and ensures that the salary basis requirement
remains ``a valuable and easily applied criterion that is a hallmark of
exempt status.'' 69 FR 22175. The Department also acknowledges the
concern articulated by AFL-CIO that this change to the part 541
regulations may result in employees with similar job duties being
classified differently depending on the criteria for the bonuses.
However, such discrepancies are unavoidable with a salary requirement
and already exist, for example, when regional differences in pay
structure result in two employees performing the same job in different
locations having different exemption status.
The Department also requested comments on whether payment on a
monthly basis is an appropriate interval for nondiscretionary bonuses
to be credited toward the weekly salary requirement. Numerous
commenters stated that a policy requiring payment no less frequently
than on a monthly basis would fail to reflect current bonus
[[Page 32427]]
payment practices and would make it difficult for employers to utilize
the new regulation. The Department believes it is appropriate to
increase the permissible bonus payment interval, and is persuaded by
comments from PPWO and others suggesting that quarterly (as opposed to
monthly) payments of nondiscretionary bonus and commission income give
employers sufficient opportunity to measure, quantify, and calculate
payments tied to productivity or profits. This lengthened interval
should also limit the compliance costs that some commenters suggested
employers would incur from having to review payroll on a monthly (or
more frequent) basis to determine which employees satisfied the salary
level test. Accordingly, Sec. 541.602(a)(3) establishes that in order
for nondiscretionary bonuses and incentive payments (including
commissions) to satisfy a portion of the standard salary level test for
the executive, administrative, and professional exemptions, such
compensation must be paid at least quarterly.
In response to commenter concerns, the Department has also
determined that it is appropriate to permit a ``catch-up'' payment at
the end of each quarter. This will help decrease the administrative
burden on employers and ensure that exempt employees receive the
compensation to which they are entitled. The Department declines to
permit employers to make a yearly catch-up payment like under the test
for highly compensated employees, as this would significantly undermine
the integrity of the salary basis requirement, which ensures that
exempt workers receive the standard salary level on a consistent basis
so that it serves as the hallmark of their exempt status. This concern
is not implicated in the HCE context because such employees must
receive the entire standard salary amount each pay period on a salary
or fee basis and the annual catch-up payment applies only to that part
of total annual compensation in excess of the standard salary amount.
The Final Rule permits employers to meet the standard salary level
requirement for executive, administrative, and professional exempt
employees by making a catch-up payment within one pay period of the end
of the quarter. In plain terms, each pay period an employer must pay
the exempt executive, administrative, or professional employee on a
salary basis at least 90 percent of the standard salary level required
in Sec. Sec. 541.100(a)(1), 541.200(a)(1), or 541.300(a)(1), and, if
at the end of the quarter the sum of the salary paid plus the
nondiscretionary bonuses and incentive payments (including commissions)
paid does not equal the standard salary level for 13 weeks, the
employer has one pay period to make up for the shortfall (up to 10
percent of the standard salary level). Any such catch-up payment will
count only toward the prior quarter's salary amount and not toward the
salary amount in the quarter in which it was paid. For example, assume
Employee A is an exempt professional employee who is paid on a weekly
basis, and that the standard salary level test is $913 per week. In
January, February, and March, Employee A must receive $821.70 per week
in salary (90 percent of $913), and the remaining $91.30 in
nondiscretionary bonuses and incentive payments (including commissions)
must be paid at least quarterly. If at the end of the quarter the
employee has not received the equivalent of $91.30 per week in such
bonuses, the employer has one additional pay period to pay the employee
a lump sum (no greater than 10 percent of the salary level) to raise
the employee's earnings for the quarter equal to the standard salary
level.\67\ The Department recognizes that some businesses pay
significantly larger bonuses; where larger bonuses are paid, however,
the amount attributable toward the EAP standard salary level is capped
at 10 percent of the required salary amount.
---------------------------------------------------------------------------
\67\ If the employer chooses not to make the catch-up payment,
the employee would be entitled to overtime pay for any overtime
hours worked during the quarter.
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The Department reemphasizes that this rulemaking does not change
the requirement in Sec. 541.601(b)(1) that highly compensated
employees must receive at least the standard salary amount each pay
period on a salary or fee basis without regard to the payment of
nondiscretionary bonuses and incentive payments. While few commenters
addressed this precise issue, the Clearing House Association urged the
Department to permit all types of bonuses and incentive payments to
satisfy the entire HCE total compensation requirement, including the
standard salary amount due each pay period. While nondiscretionary
bonuses and incentive payments (including commissions) may be counted
toward the HCE total annual compensation requirement, the HCE test does
not allow employers to credit these payment forms toward the standard
salary requirement. We conclude that permitting employers to use
nondiscretionary bonuses and incentive payments to satisfy the standard
salary amount is not appropriate because employers are already
permitted to fulfill almost two-thirds of the HCE total annual
compensation requirement with commissions, nondiscretionary bonuses,
and other forms of nondiscretionary deferred compensation (paid at
least annually). Thus, when conducting the HCE analysis employers must
remain mindful that employees must receive the full standard salary
amount each pay period on a salary or fee basis.
Finally, nothing adopted in this Final Rule alters the Department's
longstanding position that employers may pay their exempt EAP employees
additional compensation of any form beyond the minimum amount needed to
satisfy the salary basis and salary level tests. See Sec. 541.604(a).
Similarly, as noted in the NPRM, overtime-eligible (i.e., nonexempt)
employees may also receive bonuses and incentive payments. Where
nondiscretionary bonuses or incentive payments are made to overtime-
eligible employees, the payments must be included in the regular rate
when calculating overtime pay. The Department's regulations at
Sec. Sec. 778.208-.210 explain how to include nondiscretionary bonuses
in the regular rate calculation.
D. Highly Compensated Employees
As noted in the NPRM, the Department's 2004 Final Rule created a
new highly compensated exemption for certain EAP employees. Section
541.601(a) provides that such employees are exempt if they earn at
least $100,000 in total annual compensation and customarily and
regularly perform any one or more of the exempt duties or
responsibilities of an executive, administrative, or professional
employee. Section 541.601(b)(1) states that employees must receive at
least $455 per week on a salary or fee basis, while the remainder of
the total annual compensation may include commissions, nondiscretionary
bonuses, and other nondiscretionary compensation. The regulation also
clarifies that total annual compensation does not include board,
lodging, and other facilities, and does not include payments for
medical insurance, life insurance, retirement plans, or other fringe
benefits. Pursuant to Sec. 541.601(b)(2), an employer is permitted to
make a final ``catch-up'' payment during the final pay period or within
one month after the end of the 52-week period to bring an employee's
compensation up to the required level. If an employee does not work for
a full year, Sec. 541.601(b)(3) permits an employer to pay a pro rata
portion of the required annual compensation, based upon the number of
weeks of
[[Page 32428]]
employment (and one final payment may be made, as under paragraph
(b)(2), within one month after the end of employment).
The Department stated in the NPRM that we continue to believe that
an HCE test for exemption is an appropriate means of testing whether
highly compensated employees qualify as bona fide executive,
administrative, or professional employees, but we proposed to increase
the total annual compensation requirement and update it automatically
on an annual basis. In the 2004 Final Rule, the Department concluded
that the requirement for $100,000 in total annual compensation struck
the right balance by matching a much higher compensation level than was
required for the standard salary level test with a duties test that was
significantly less stringent than the standard duties test, thereby
creating a test that allowed only appropriate workers to qualify for
exemption. See 69 FR 22174. This total annual compensation requirement
was set more than four times higher than the standard salary
requirement of $455 per week, which totals $23,660 per year. See id. at
22175. Such a balancing of a substantially higher compensation
requirement with a minimal duties test still is appropriate, so long as
the required annual compensation threshold is sufficiently high to
ensure that it continues to cover only employees who ``have almost
invariably been found to meet all the other requirements of the
regulations for exemption.'' Id. at 22174.
In the NPRM, the Department proposed to update Sec. 541.601 by
increasing the total annual compensation required for the highly
compensated test in order to ensure that it remains a meaningful and
appropriate standard when matched with the minimal duties test. The
Department noted that over the past decade, the percentage of salaried
employees who earn at least $100,000 annually has increased
substantially to approximately 17 percent of full-time salaried
workers, more than twice the share who earned that amount in 2004;
therefore, we proposed to increase the total annual compensation
requirement to the annualized weekly earnings of the 90th percentile of
full-time salaried workers nationally ($122,148 in 2013) to bring the
annual compensation requirement more in line with the level established
in 2004. Consistent with the 2004 regulations, the Department also
proposed that at least the standard salary requirement must be paid on
a salary or fee basis. The Department did not propose any changes to
the HCE duties test.
Commenters provided both support for, and opposition to, the
Department's proposal to increase the total annual compensation
requirement for the HCE exemption, with some commenters preferring a
higher compensation level and others preferring a lower level.
Additionally, some commenters suggested that the HCE exemption should
be eliminated entirely, while others suggested that the HCE duties test
should be modified or eliminated. Both commenters representing
employers and those representing employees generally provided much less
comment on, and analysis of, the HCE proposal than they did regarding
the other issues raised in the NPRM, however, with many commenters
mentioning the HCE proposal only in passing or not at all.
Among those who supported the proposal as written, the American
Federation of Government Employees (AFGE) indicated that the ``new
salary threshold for the HCE exemption provides a more accurate
representation of which employees might be classified as exempt from
the FLSA based on their salary,'' and stated that the 90th percentile
of annual earnings of full-time salaried workers ``provides an
objective basis for determining which employees are truly `highly-
compensated' and likely to meet the qualifications of exemption from
the FLSA.'' The Printing Industries of America also supported the
proposal, stating that ``we believe this is an appropriate level for
this particular test.'' The Partnership indicated that increasing the
HCE compensation threshold to the 90th percentile accounts for the fact
that its 2004 value has eroded over time and ``is appropriate to ensure
that only the most highly paid employees are categorically excluded
from overtime requirements, as was the rule's intent when it was
adopted in 2004.''
Some commenters stated that the proposed HCE total annual
compensation requirement should be increased so that the percentage of
employees falling within the new compensation level matched the
percentage covered in 2004. For example, NELA and Rudy, Exelrod, Zieff,
& Lowe indicated that ``[i]n 2004, 6.3 percent of full-time salaried
workers earned a salary higher than the HCE compensation level of
$100,000 . . . [so in] order to maintain the . . . 93.7 percentile
figure, the Department would need to increase the HCE compensation
level to $150,000 per year.'' \68\ These commenters asserted that such
a level ``is the proper approach if the exemption truly is going to
exclude only those at the very top of the ladder,'' and indicated that
a substantial increase from the current HCE compensation level is
warranted to ``reflect the purpose of this test.'' The commenters also
cited to the 2004 Final Rule in which the Department stated that
``virtually every salaried `white collar' employee with a total annual
compensation of $100,000 per year would satisfy any duties test.'' 69
FR 22174. Nichols Kaster similarly stated that the 90th percentile of
salaried earnings is ``too low to offset the minimal duties test of the
HCE exemption.'' Nichols Kaster favored eliminating the HCE exemption
entirely and stated that the ``statutory text of the FLSA does not
contain an exemption for highly compensated employees (HCEs).'' This
commenter also stated that there ``is no causal connection between high
compensation and exempt job duties,'' and thus expressed the view that
``[s]uch a test does not accurately define or delimit bona fide exempt
employees.'' However, Nichols Kaster stated that if the Department
retains the HCE exemption, the compensation level should be increased
to the 95th percentile, should not include ``catch-up'' pay, and should
be based only on salary payments.
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\68\ In the 2004 Final Rule, the Department set the total annual
compensation amount at a level approximating the highest 10 percent
of likely exempt employees. In the NPRM, we noted that the HCE total
annual compensation level covered approximately the highest 6.3
percent of all full-time salaried employees at the time it was set.
80 FR 38562; see 69 FR 22169 (Table 3). In commenting on the current
proposal, some commenters addressed the proposal in terms of likely
exempt employees (10 percent) while other commenters addressed the
proposal in terms of all salaried employees (6.3 percent).
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Other commenters opposed the Department's proposed increase to the
HCE exemption's total annual compensation requirement. Tracstaffing
opined that there ``is no compelling reason to increase the minimum
salary level for highly compensated salaried employees.'' H-E-B
similarly stated that ``[t]here is no public policy justification for
paying overtime to an individual receiving a six figure annual
income.'' SIFMA advocated ``maintaining the $100,000 threshold for the
highly compensated test, as the `bright line' $100,000 mark furthers
the goal of simplifying the analysis of who qualifies for the test.''
The Chamber, the National Lumber and Building Material Dealers
Association, NSBA, PPWO, Seize This Day Coaching, and several other
[[Page 32429]]
commenters all similarly commented that the compensation level should
remain the same for the HCE exemption test. The Clearing House
Association and SIFMA commented that the HCE exemption should not have
an associated duties test.
The Department has considered the comments regarding the HCE test
for exemption and revises Sec. 541.601 to set the total annual
compensation required for the highly compensated exemption at the
annualized weekly earnings of the 90th percentile of full-time salaried
workers nationally as proposed ($134,004 based on the fourth quarter of
2015). The Department disagrees with comments asserting that the HCE
exemption compensation level should not be increased. The highly
compensated earnings level should be set high enough to avoid the
unintended exemption of employees who clearly are outside the scope of
the exemptions and are entitled to the FLSA's minimum wage and overtime
pay protections.\69\ See 69 FR 22174.
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\69\ As the Department has previously noted this includes
employees such as secretaries in high-wage markets. Courts have also
found that real estate appraisers and chief inspectors also do not
qualify for the HCE exemption. See Boyd v. Bank of America Corp.,
109 F.Supp.3d 1273 (C.D. Ca. 2015) (real estate appraisers); Zubair
v. EnTech Engineering P.C., 808 F.Supp.2d 592 (S.D.N.Y. 2011) (chief
inspector who tested ``concrete and paint sample and recommended
project improvement to the overall paint systems'').
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The Department notes that it has been 12 years since the HCE annual
compensation level was set and, as with the standard salary level, the
2004 value has eroded over time. In FY2017, approximately 20 percent of
full-time salaried workers are projected to earn at least $100,000
annually, about three times the share who earned that amount in 2004.
See section VI.C.iv. In order to ensure that the HCE compensation level
remains a meaningful and appropriate standard when matched with the
minimal duties test, the Department is increasing the HCE compensation
level to the annualized weekly earnings of the 90th percentile of full-
time salaried workers nationally. This level, which is generally
consistent with the level established in the 2004 Final Rule, is an
appropriate proxy for identifying those white collar workers who may
qualify as bona fide EAP workers without sweeping in overtime-eligible
workers in high-wage regions. In response to the comments from employee
representatives suggesting the new HCE compensation level should be
even higher, the Department does not agree that a compensation level
higher than the 90th percentile is necessary to ensure that virtually
every salaried white collar employee would satisfy any duties test. The
Department notes that the value of tying the HCE compensation level to
wage data is that it will keep the HCE compensation level in tandem
with increases in actual wages and therefore not grow either too slowly
or too quickly. Therefore, the Final Rule increases the total annual
compensation requirement to the annualized weekly earnings of the 90th
percentile of full-time salaried workers nationally, which based on
fourth quarter of 2015 data is $134,004.\70\
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\70\ See www.bls.gov/cps/research_series_earnings_nonhourly_workers.htm.
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Additionally, the Department proposed to maintain the requirement
that at least the standard salary amount must be paid on a salary or
fee basis. Under the current rule, employees for whom the HCE exemption
is claimed must receive the full standard salary amount of $455 weekly
on a salary or fee basis. See Sec. 541.601(b). The Department proposed
to maintain this requirement, updating the amount that must be paid on
a salary or fee basis to the 40th percentile of weekly earnings of
full-time salaried employees nationally. The Final Rule maintains this
requirement, but modifies the amount of the standard salary to the 40th
percentile of weekly earnings of full-time salaried workers in the
lowest-wage Census Region. The Department further stated that should it
adopt a provision in the Final Rule permitting employers to take a
credit against the payment of the standard salary level for
nondiscretionary bonuses, that credit would not be applicable to the
HCE exemption. 80 FR 38537 n.36. As previously discussed in section
IV.C., the Department received almost no comments addressing the
exclusion of bonus payments from satisfaction of the salary requirement
for HCE employees. The Final Rule maintains the requirement that
employees for whom the HCE exemption is claimed must receive the
standard weekly salary amount on a salary or fee basis and does not
permit employers to credit nondiscretionary bonuses for up to 10
percent of that salary payment as is permitted under this Final Rule
under the standard salary test. Employers can already credit such
payments toward the portion of the HCE total compensation requirement
in excess of the standard salary level; the Department does not believe
that allowing such payments to also satisfy a portion of the standard
salary level for HCE employees would be appropriate.
A few commenters requested a regional adjustment for the HCE salary
level. The Chamber stated that the ``Department should set the highly
compensated test using actual salary levels of exempt employees working
in the South and in the retail sector that would meet the highly
compensated exemption requirements.'' The Department notes that no
regional adjustment has been made to the HCE compensation level in this
Final Rule, just as this was not part of the 2004 Final Rule's
determination of the compensation level required for the HCE exemption.
The HCE exemption must use a national wage rate to effectively ensure
that workers such as secretaries in high-wage areas, such as New York
City and Los Angeles, are not inappropriately exempted based upon the
HCE exemption's minimal duties test.
The Department proposed in the NPRM to annually update the HCE
total annual compensation requirement. As explained in greater detail
in the automatic updating section, the Department will automatically
update the HCE compensation level every three years, beginning on
January 1, 2020.
The Department did not propose any changes to the HCE duties test
created in 2004 and makes no change to the HCE duties test in this
Final Rule. With respect to the call by some commenters to eliminate
the duties test for the HCE exemption, the Department notes that we
have consistently declined to adopt a salary-only test, because our
statutory authority is to define and delimit who is employed in a bona
fide executive, administrative or professional capacity, and salary
alone is not an adequate definition. In the 2004 Final Rule, the
Department expressed our agreement with commenters ``that the Secretary
does not have authority under the FLSA to adopt a `salary only' test
for exemption, and reject[ed] suggestions from employer groups to do
so,'' and further noted that ``[t]he Department has always maintained
that the phrase `bona fide executive, administrative, or professional
capacity' in the statute requires the performance of specific duties.''
See 69 FR 22173. The Department continues to require, as we did in the
2004 Final Rule, that an employee have a primary duty that includes
performing office or non-manual work to qualify for the HCE exemption,
and workers such as ``carpenters, electricians, mechanics, plumbers,
iron workers, craftsmen, operating engineers, longshoremen,
construction workers, laborers, and other employees who perform work
involving repetitive operations with their hands, physical skill and
energy are not exempt under this section no
[[Page 32430]]
matter how highly paid they might be.'' Sec. 541.601(d).
With respect to Nichols Kaster's comment asserting that the HCE
exemption lacks a meaningful duties test, the Department notes that
pursuant to Sec. 541.601(a), HCE employees must customarily and
regularly perform any one or more of the exempt duties or
responsibilities of an executive, administrative, or professional
employee as identified in the regulations. As noted in the 2004 Final
Rule, the ``Department continues to find that employees at higher
salary levels are more likely to satisfy the requirements for exemption
as an executive, administrative, or professional employee.'' 69 FR
22174. Therefore, ``the purpose of section 541.601 was to provide a
short-cut test for such highly compensated employees who have almost
invariably been found to meet all the other requirements of the
regulations for exemption.'' Id. (internal quotation marks omitted). As
we noted in the 2004 Final Rule, the ``Department has the authority to
adopt a more streamlined duties test for employees paid at a higher
salary level.'' 69 FR 22173. We continue to believe that the existing
HCE duties test is appropriate for those earning at the 90th percentile
of full-time salaried workers, especially in light of the fact that the
required compensation level will be routinely updated and, therefore,
will remain a meaningful test.
E. Automatic Updates
As the Department noted in the NPRM, even a well-calibrated salary
level that is fixed becomes obsolete as wages for nonexempt workers
increase over time. Lapses between rulemakings have resulted in EAP
salary levels that are based on outdated salary data, and thus are ill-
equipped to help employers assess which employees are unlikely to meet
the duties tests for the exemptions. To ensure that the salary level
set in this rulemaking remains effective, the Department proposed to
modernize the regulations by establishing a mechanism for automatically
updating the standard salary test, as well as the total annual
compensation requirement for highly compensated employees. The
Department explained that the addition of automatic updating would
ensure that the salary test level is based on the best available data
(and thus remains a meaningful, bright-line test), produce more
predictable and incremental changes in the salary required for the EAP
exemptions, and therefore provide certainty to employers, and promote
government efficiency.
The Department sought comments on two alternative automatic
updating methodologies. One method would update the threshold based on
a fixed percentile of earnings of full-time salaried workers. The other
method would update the threshold based on changes in the Consumer
Price Index for All Urban Consumers (CPI-U). The Department also
proposed to automatically update the total annual compensation
requirement for the HCE exemption with the same method chosen to update
the standard salary test. Regardless of the method selected, the
Department proposed that automatic updating for both thresholds would
occur annually, but invited comment regarding whether a different
updating frequency would be more appropriate. Finally, the Department
proposed to publish the updated rates at least 60 days before they take
effect, and invited comment regarding whether the updated rates should
take effect based on the effective date of the Final Rule, on January
1, or on some other specified date. The Department received many
comments in response to these proposals.
The Final Rule establishes that the Department will automatically
update the standard salary level test by maintaining the salary level
at the 40th percentile of weekly earnings of full-time salaried workers
in the lowest-wage Census Region. The Department will update the annual
compensation requirement for highly compensated employees by
maintaining this level at the annualized value of the 90th percentile
of the weekly earnings of full-time salaried workers nationwide. In
response to commenter concerns, the Department has modified the
frequency and advance-notice elements of the updating mechanisms. The
Final Rule establishes that automatic updates to the standard salary
level and the HCE annual compensation requirements will occur every
three years on the first of the year, and that the Department will
publish the updated rates in the Federal Register at least 150 days
before their effective date, and post the updated salary and
compensation levels on the WHD Web site. The first automatic update
will take effect on January 1, 2020. The automatic updating provision
is set forth in new Sec. 541.607.
i. The Department's Legal Authority To Automatically Update the Salary
Level
Most commenters that addressed automatic updating focused on the
merits of the Department's proposal, but some discussed our authority
to automatically update the salary level.\71\ Commenters that opposed
automatic updating discussed this issue more frequently and in much
greater detail than those that favored the Department's proposal.
---------------------------------------------------------------------------
\71\ Some commenters, like the Equal Employment Advisory Council
(EEAC), addressed the Department's authority to automatically update
the HCE compensation requirement by noting that its reservations
regarding automatic updating of the standard salary level apply
equally to the Department's proposal to automatically update the HCE
exemption's threshold. We do not separately address this issue
since, like the standard salary level, our authority to
automatically update the HCE threshold is grounded in section
13(a)(1), and the discussion in this section therefore applies
equally to our adoption of a mechanism to automatically update the
HCE total compensation requirement.
---------------------------------------------------------------------------
Organizations representing employee interests, including AFL-CIO
and NWLC, asserted that the Department has authority to establish an
automatic updating mechanism through notice and comment rulemaking.
These commenters stated that just as the Department has authority under
29 U.S.C. 213(a)(1) to establish the salary level test, we likewise
have authority to automatically update the salary level to ensure it
remains effective. Several commenters emphasized that Congress has
never limited the Department's ability to update the salary level. For
example, EPI stated that ``Congress in 1938 gave the authority to
define and delimit the terms `bona fide executive, administrative, or
professional' to the Secretary of Labor and has never taken it back,
except with respect to very particular occupations,'' and a comment
from 57 labor law professors similarly stated that automatic updating
is ``within [the Department's] discretion and authority'' because
``Congress granted the agency wide discretion in implementation of the
statutory language.'' Other commenters, including AFSCME and NELP,
highlighted that automatic updating is consistent with the FLSA's
purpose.
In contrast, a number of organizations representing employer
interests challenged the Department's authority to add an updating
mechanism. Many of these commenters, including ABC, ALFA, CUPA-HR, NRA,
PPWO, and Seyfarth Shaw, stated that Congress has never granted the
Department authority to institute automatic updating, and asserted that
section 13(a)(1)'s silence on this issue reflects that Congress did not
intend the salary level test to be automatically updated. These and
other commenters stressed that whereas Congress has never amended
section 13(a)(1) to expressly include automatic updating, Congress has
expressly authorized indexing under other
[[Page 32431]]
statutes. Many commenters, including the Chamber, CUPA-HR, and FMI,
highlighted that Congress has never provided for automatic increases to
the FLSA minimum wage, and the Chamber added that Congress has not
indexed the minimum hourly wage for exempt computer employees under
section 13(a)(17) of the FLSA, the cash wage for tipped employees under
section 3(m) of the FLSA, or any of the FLSA's subminimum wages.
These comments reveal disagreement about the scope of the
Department's delegated authority under section 13(a)(1) to define and
delimit the EAP exemptions. The Department disagrees with the position
that section 13(a)(1)'s silence on automatic updating forecloses the
Department from establishing an updating mechanism. While it is true
that section 13(a)(1) does not reference automatic updating, it also
does not reference a salary level or salary basis test, a duties test,
or other longstanding regulatory requirements. Rather than set precise
criteria for defining the EAP exemptions, Congress delegated that task
to the Secretary by expressly giving the Department the broad authority
to define and delimit who is a bona fide executive, administrative, or
professional employee. As we explained in the NPRM, since 1938 the
Department has used this authority to promulgate many significant
regulatory changes to the EAP exemptions, including adding a separate
salary level for professional employees and a separate duties test for
administrative employees in 1940, adopting separate short and long test
salary levels in 1949, and eliminating the long duties test and
creating a single standard salary level test and a new HCE exemption in
2004. These changes were all made without specific Congressional
authorization. Despite numerous amendments to the FLSA over the past 78
years, Congress has not altered the Department's authority to
promulgate, update, and enforce the salary test regulations. The
Department concludes that just as we have authority under section
13(a)(1) to establish the salary level test, we likewise have authority
to adopt a methodology through notice and comment rulemaking for
automatically updating the salary level to ensure that the test remains
effective. This interpretation is consistent with the well-settled
principle that agencies have authority to `` `fill any gap left,
implicitly or explicitly, by Congress.' '' Long Island Care at Home,
Ltd. v. Coke, 551 U.S. 158, 165 (2007) (quoting Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837,843 (1984)).
That other statutes expressly provide for indexing does not alter
our interpretation of the FLSA. The Department's authority to set and
update the salary level test is based in the language of the FLSA, and
the fact that there are indexing provisions in other statutes does not
limit that authority. Moreover, three of the four non-indexed FLSA wage
rates that the Chamber and other commenters referenced--the section
6(a)(1) minimum wage, the minimum hourly wage for exempt computer
employees under section 13(a)(17), and the cash wage for tipped
employees under section 3(m)--are set by statute.\72\ In contrast, the
salary level is purely a creature of regulation. Whether Congress has
indexed statutorily-established rates within the FLSA does not inform,
let alone undermine, the Department's authority to use notice and
comment rulemaking to create a mechanism for keeping the regulatory
salary level up to date.
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\72\ The Chamber also referenced the FLSA's subminimum wage
rates. While the Secretary sets some subminimum wage rates, the FLSA
establishes the existence of such rates. See, e.g., 29 U.S.C. 214(a)
(minimum wage for learners, apprentices, and messengers).
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The Department also received several comments stating that
automatic updating violates section 13(a)(1)'s mandate that the
Secretary define and delimit the EAP exemption from ``time to time.''
For example, the Chamber commented that this statutory language gives
``no indication that Congress wanted to put these regulations on auto-
pilot,'' but instead supports that ``Congress wants the Department to
`continually revisit' the Part 541 regulations'' (emphasis in comment)
(quoting 80 FR 38537). However, promulgating an automatic updating
mechanism does not conflict with section 13(a)(1)'s ``time to time''
language. The salary level percentile adopted in this rulemaking
reflects the Department's analysis of the appropriate line of
demarcation between exempt and nonexempt workers; providing that this
dividing line will continue to remain up to date over time fulfills the
Department's obligation to ensure that only ``bona fide'' EAP workers
qualify for exemption. Moreover, maintaining the salary level at the
40th percentile of salaries in the lowest-wage Census Region by
updating it every three years in no way precludes the Department from
revisiting this methodology from ``time to time'' should cumulative
changes in job duties, compensation practices, and other relevant
working conditions indicate that changes to the salary level
calculation method may be warranted.
The Department also received several comments asserting that
automatic updating violates the APA and section 13(a)(1)'s requirement
that the EAP exemption be defined and delimited by regulations of the
Secretary subject to the provisions of the APA. These commenters
asserted, albeit on slightly different grounds, that notice and comment
rulemaking must precede any salary level change. CUPA-HR emphasized
that under section 13(a)(1) any updating must be done by regulation,
and EEAC asserted that ``the FLSA exemptions have the full force and
effect of law'' and the ``APA requires notice-and-comment rulemaking
each time an agency issues, repeals, or amends a legislative rule.''
NRF stated that any increase should be ``based on an individualized
evaluation of economic conditions rather than an automatic arbitrary
formula,'' and several commenters stressed that the Department must
consider prevailing conditions and provide for public comment before
updating the salary level. See, e.g., Jackson Lewis; NAM; PPWO.
The Department believes that automatically updating the salary
level fully complies with the APA and section 13(a)(1). Through this
rulemaking the Department is promulgating an automatic updating
mechanism by regulation and in accordance with the APA's notice and
comment requirements. The updating mechanism is not an ``arbitrary
formula,'' but the product of an exhaustive rulemaking process that
took into consideration the views of thousands of commenters. These
comments raised a wide range of relevant issues, including the impact
of an updating mechanism, and greatly influenced the content of the
Final Rule. For example, in response to these comments (and as
discussed in detail below) the Department adopted a fixed percentile
approach to automatic updating, changed the updating frequency from
annually to every three years, increased the period between announcing
the updated salary level and the effective date of the update from 60
days to at least 150 days, and set January 1 as the effective date for
future salary level updates. As to commenter concerns about accounting
for prevailing economic conditions, both the NPRM and this Final Rule
contain detailed 10-year projections of the costs and transfers
associated with automatic updating. See section VI.D.x.; 80 FR 38586-
89. Moreover, maintaining the
[[Page 32432]]
salary level at a fixed percentile of earnings will help ensure the
test continues to reflect prevailing wage conditions, and does not
preclude the Department from revising the updating mechanism in the
future through notice and comment rulemaking if we determine that
conditions warrant. We disagree with commenter statements that notice
and comment rulemaking must precede every salary level update when the
underlying salary setting methodology is unchanged and reject the
notion that in directing the Department to define and delimit the EAP
exemption by regulations, Congress intended to prohibit the Department
from establishing an automatic updating mechanism through notice and
comment rulemaking.
Relatedly, a few commenters interpreted our NPRM statement that
automatic updating would remove ``the need to continually revisit this
issue through resource-intensive notice and comment rulemaking,'' 80 FR
38537, as an attempt to impermissibly circumvent the APA. See, e.g.,
Chamber; NRA. This statement was not an attempt to sidestep the APA,
but rather part of our explanation for seeking comment on the merit of
using an updating mechanism to keep the salary level test current. The
Department has dedicated considerable resources toward this rulemaking,
including conducting extensive outreach prior to issuing the NPRM,
drafting a comprehensive NPRM, receiving and reviewing more than
270,000 timely comments, and drafting a Final Rule addressing these
comments. The Department recognizes and appreciates the commenters'
views. We disagree, however, that section 13(a)(1) or the APA prohibits
us from establishing a mechanism to keep the salary level up to date so
that it continues to work effectively with the duties test. Instead, we
conclude that introducing an updating mechanism that ensures that the
EAP exemptions remain up to date is a reasonable exercise of the
Department's statutorily-established authority to define and delimit
the EAP exemptions.\73\
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\73\ This approach is consistent with the Department's approach
taken when issuing regulations to establish required wage rates in
other programs for which we have enforcement responsibility. See 20
CFR 655.120 (describing method for updating adverse effect wage
rates for H-2A visa program); 20 CFR 655.211 (using Employment Cost
Index to update required wage for employees engaged in herding or
the production of livestock under the H-2A program).
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The Department also received several comments highlighting that in
two prior rulemakings we rejected commenter requests to automatically
update the salary level. Specifically, some commenters raised that in
our 1970 rulemaking we stated, in response to a comment, that automatic
updating would ``require further study,'' 35 FR 884, and that we
declined a similar request in 2004. See, e.g., Chamber; FMI. The
Department acknowledged these prior statements in the NPRM. While we
agree with commenters that our decision to institute automatic updating
in this Final Rule departs from our 1970 and 2004 rulemakings, these
past statements in no way foreclose our current action. The 1970
rulemaking stated that the request to automatically update the salary
level ``appears to have some merit, particularly since past practice
has indicated that approximately 7 years elapse between amendment of
the salary level requirements.'' 35 FR 884. The time between
rulemakings has increased since 1970 (this will be the third salary
level update in 46 years), underscoring the merit of automatic
updating. Consistent with our earlier statement that automatic updating
``would require further study,'' the Department has proposed the
addition of an updating mechanism in this rulemaking and considered the
wide-range of comments received on the issue. While in the 2004 Final
Rule we declined to institute automatic updating and instead expressed
our intent ``in the future to update the salary levels on a more
regular basis, as [we] did prior to 1975,'' 69 FR 22171, our subsequent
experience has prompted us to reexamine this matter.
Several commenters, including IFA and Littler Mendelson,
specifically referenced our refusal to institute inflation-based
indexing in the 2004 Final Rule. In that rulemaking we stated, in
response to a comment, that ``the Department has repeatedly rejected
requests to mechanically rely on inflationary measures when setting the
salary levels in the past because of concerns regarding the impact on
lower-wage geographic regions and industries.'' 69 FR 22172. We then
stated that such ``reasoning applies equally when considering automatic
increases to the salary levels'' and that ``the Department believes
that adopting such approaches in this rulemaking is both contrary to
congressional intent and inappropriate.'' Id. In its comment, the
Chamber interpreted this language as expressing our conclusion ``that
Congress did not give the Department authority to provide automatic
increases to the salary level'' and stated that ``the Chamber is
unaware of any legislative or legal development that would justify [our
purported] reversal.''
These commenters' reading of the 2004 Final Rule is overly broad,
as we did not conclude that the Department lacks legal authority to
institute automatic updating. Our reference to automatic updating
simply reflected our conclusion at that time that an inflation-based
updating mechanism, such as one based on changes in the prices of
consumer goods, that unduly impacts low-wage regions and industries
would be inappropriate. As explained in the NPRM, closer examination
reveals that concerns raised when setting a new salary level using an
inflation index are far less problematic in the automatic updating
context. See 80 FR 38540. For example, in the automatic updating
context there is little risk of using an outdated salary level as a
baseline for inflation-based adjustments, and the inability of
inflation-based indicators to account for changes in working conditions
is therefore less concerning. See id. Regardless, our prior concerns
about inflation-based updating are not implicated here because the
Department has chosen to automatically update the salary level based on
a fixed percentile of earnings of full-time salaried workers. As
explained in detail in section IV.A., in response to commenter concerns
that setting the salary level using the 40th percentile of a nationwide
data set would adversely impact low-wage regions and industries, the
Department is setting the salary level at the 40th percentile of full-
time salaried workers in the lowest-wage Census Region, which yields a
lower salary level that will exclude fewer employees performing EAP
duties in low-wage regions and industries. Tying the salary level and
updating mechanism to a fixed percentile of earnings in the lowest-wage
Census Region squarely addresses the concern we raised in the 2004
Final Rule, and ensures that our updating mechanism is appropriate for
all areas and industries.
Several commenters, including CUPA-HR and FMI, also deemed the
Department's proposal inconsistent with our statement in the 2004 Final
Rule that ``the Department finds nothing in the legislative or
regulatory history that would support indexing or automatic
increases.'' 69 FR 22171. But as explained in our proposal, the lack of
on-point legislative history--either favoring or disfavoring automatic
updating--is unsurprising given the origin and evolution of the salary
level test. Congress did not set forth any criteria, such as a salary
level test, for defining the EAP exemptions, but instead delegated that
task to the Secretary. The Department established
[[Page 32433]]
the first salary level tests by regulation in 1938, using our delegated
authority to define and delimit the EAP exemptions. See 29 U.S.C.
213(a)(1). The fact that the salary level tests were created by
regulation after the FLSA was enacted accounts for the lack of
legislative history addressing the salary level tests or updating
methods. As previously discussed, despite numerous amendments to the
FLSA over the past 78 years, and the Department making many significant
changes to the EAP exemptions, Congress has not altered the
Department's authority to promulgate, update, and enforce the salary
test regulations. We agree with commenters that instituting an
automatic updating mechanism departs from the Department's past
practice, but believe this is an appropriate modernization and within
the Department's authority.
The Department also received several comments addressing the impact
of automatic updating on compliance with the Regulatory Flexibility Act
(``RFA'') and Executive Order 13563, Improving Regulation and
Regulatory Review. Seyfarth Shaw urged the Department to not proceed
with automatic updating in part because this mechanism would
``effectively bypass[]'' these authorities. PPWO raised similar RFA
concerns and characterized the Department's rulemaking as a `` `super-
proposal,' deciding once and for all what (in the Department's belief)
is best without consideration of its impact now or in the future.''
PPWO further stated that ``it would not be possible for the Department
to accurately estimate the impact of the automatic increases in future
years as the workforce and the economy are always changing.''
The RFA requires a regulatory flexibility analysis to accompany any
agency rule promulgated under 5 U.S.C. 553. See 5 U.S.C. 603-604. In
accordance with this requirement, this rulemaking estimates the future
costs of automatic updating using the fixed percentile approach. The
RFA only requires that such analyses accompany rulemaking, and
commenters have not cited any RFA provision that would require the
Department to conduct a new regulatory flexibility analysis before each
automatic salary level update. In response to PPWO's concern about this
rulemaking setting the salary level updating process ``once and for
all,'' we reiterate that this Final Rule does not preclude further
rulemaking should the Department determine that future conditions
indicate that revisions to the salary level updating methodology may be
warranted.
Similarly, Executive Order 13563 directs agencies to take certain
steps when promulgating regulations, including using the ``best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible'' and adopting regulations
``through a process that involves public participation.'' 76 FR 3821
(Jan. 18, 2011). The current rulemaking fully satisfies all aspects of
Executive Order 13563, see section VI; 80 FR 38545, and commenters have
cited no portion of this directive that would require notice and
comment rulemaking to precede future automatic salary level increases
made through the updating mechanism established in this rulemaking.
Finally, Fisher & Phillips and the Southeastern Alliance of Child
Care Associations stated that because the Department did not propose
specific regulatory text concerning automatic updating, ``adoption of
any such indexing mechanism would be unlawful and without effect''
under the APA. These commenters did not specify the provision of the
APA that is purportedly violated. The APA requires that the notice of
proposed rulemaking published in the Federal Register include either
the terms or substance of the proposed rule or a description of the
subjects and issues involved. See 5 U.S.C. 553(b)(3). The Department's
proposal fully satisfies this standard, which does not require the NPRM
to ``contain every precise proposal which (the agency) may ultimately
adopt as a rule,'' much less the specific regulatory text. Ethyl Corp.
v. EPA, 541 F.2d 1, 48 (D.C. Cir. 1976) (en banc) (internal quotation
marks and citations omitted). The proposed regulatory text for each
exemption states that the salary level will be updated annually (on a
to-be-determined date) and that the Department will publish a notice
with the updated levels at least sixty days before these rates become
effective. See 80 FR 38610-11. The proposal also explains why, rather
than propose regulatory text for a specific updating method, the
Department sought comments on two alternatives (each of which we
discussed in depth). See 80 FR 38539. The Department's NPRM fully
satisfies the APA.
ii. Rationale for Automatically Updating Salary Levels
The Department proposed to establish automatic updating mechanisms
to ensure that the standard salary test and the HCE total annual
compensation requirement remain meaningful tests for distinguishing
between bona fide EAP workers who are not entitled to overtime and
overtime-protected white collar workers, and continue to work
effectively with the duties tests. The Department's proposal explained
that this change would ensure that these thresholds are based on the
best available data and reflect prevailing salary conditions, and will
produce more predictable and incremental changes in the salary required
for the EAP exemptions. The Department received numerous comments
addressing our automatic updating proposal.
Commenters were sharply divided over whether the Department should
automatically update the salary level.\74\ Employees and commenters
representing employee interests overwhelmingly supported this change,
while most employers and commenters representing employer interests
opposed automatic updating. Overall, those supporting automatic
updating generally agreed with the Department's rationale presented in
the NPRM and emphasized the benefits to employees and employers of
maintaining an up-to-date salary level, while those in opposition
challenged the Department's rationale and emphasized the burdens annual
updating would impose on employers. Several employers favored automatic
updating, but requested that updates occur less frequently than on an
annual basis. Additionally, some commenters that opposed automatic
updating nonetheless expressed a preference for a particular updating
methodology should the Department go forward with this aspect of our
proposal.
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\74\ Relatively few commenters specifically addressed the
proposal to automatically update the HCE total annual compensation
level, and those that did generally stated that their views mirrored
their comments on the proposal to automatically update the standard
salary level. Accordingly, this discussion focuses on the standard
salary level but also applies to the Department's adoption of an
automatic updating mechanism for the HCE compensation requirement.
---------------------------------------------------------------------------
Commenters that supported automatic updating focused primarily on
the benefits of maintaining an up-to-date salary level. Many commenters
agreed with the Department's proposal, stating that automatic updating
is a transparent way to maintain an effective salary level and avoid
the negative effects of infrequent salary level updates. For example,
NELP stated that automatic updating ``is by far the most reasonable,
efficient and predictable way to ensure that the standard for exemption
remains true to the statute's intended purposes,'' AFL-CIO stated that
a ``transparent updating process would provide greater certainty and
predictability for employers and workers alike,'' and
[[Page 32434]]
Bend the Arc, Employment Justice Center, Maintenance Cooperation Trust
Fund, and several other worker advocacy groups stated that indexing
``the salary threshold to an objective measure provides a predictable
and efficient way to ensure that those workers intended to be covered
by the [FLSA] get its protections.'' Many other commenters made similar
statements. See, e.g., AARP; AFT; EPI; the Gillespie Sanford law firm;
Labor and Employment Committee of the National Lawyers Guild-New York
City Chapter; NWLC.
Commenters supporting automatic updating also frequently discussed,
and viewed the Department's proposal as a solution to, the Department's
past inability to regularly update the salary level. These commenters
emphasized that automatic updating would increase predictability in
both the frequency and size of salary level changes, benefiting
employers and employees. See, e.g., Comment from 57 labor law
professors; AFL-CIO; Partnership. Several commenters representing
employer interests viewed automatic updating as a means of producing
more predictable salary level changes. See, e.g., American Council of
Engineering Companies; CVS Health. Similarly, SIGMA supported automatic
updating because ``[s]udden, large adjustments to the threshold without
warning can cause dislocation in the industry, increase compliance
costs, and provide disincentives to employing people on a salaried
rather than an hourly basis.'' ANCOR stated that ``steadier, more
predictable'' salary level changes would ``likely benefit providers who
will be able to adjust to smaller, more frequent changes better than to
larger, less frequent ones.''
Some commenters that supported automatic updating, including Athens
for Everyone, NELA, Rudy, Exelrod, Zieff & Lowe, and many others,
stressed that a fixed salary level harms employees because inflation
causes the salary threshold's real value to decline over time. AFSCME
submitted campaign comments from 24,122 of its members who agreed that
``overtime protections have been eroded by inflation,'' and highlighted
the ``need to index these protections to keep them from being eroded
again in the future.'' NELA and Rudy, Exelrod, Zieff & Lowe also stated
that this decline particularly harms workers earning just below the
fixed salary level when it is first set, because they will ``soon see
that figure fall below their salary'' and lose overtime protection even
if ``the real value of their salary stays entirely constant.''
Likewise, Nichols Kaster stated that infrequent salary level updates
have harmed workers earning just above the salary threshold when it is
first set, as these workers have ``no protection against working long
hours for diminishing returns.''
A number of commenters also raised the related view that automatic
updating would decrease inappropriate classification of lower salaried
white collar employees as exempt. AFGE, IAFF, and others noted that the
salary level's effectiveness at distinguishing between exempt and
nonexempt workers diminishes over time as the wages of employees
increase and the real value of the salary threshold falls. SEIU and a
number of worker advocacy groups, including Equal Justice Center, NDWA,
and Texas RioGrande Legal Aid, asserted that infrequent salary level
updates have permitted employers to sweep too many low-salaried workers
into the exemption, with NELP citing the proximity of the current
salary threshold to the poverty level as a ``potent example'' of how
the ``current method of setting fixed levels results in outdated
thresholds and ballooning numbers of workers improperly subject to
employer classification as exempt.'' Some commenters, including AFL-CIO
and UFCW, asserted that failing to regularly update the standard salary
level also exposes growing numbers of workers who fail the standard
duties test to the ``risk of misclassification.''
The Department received numerous comments from employers and groups
representing employers opposing the introduction of an automatic
updating mechanism. These commenters raised a variety of concerns and
urged the Department not to finalize this aspect of our proposal.
Consistent with how many commenters organized their comments, these
views are aptly separated into two broad categories: Those addressing
whether automatic updating is appropriate as a general matter, and
those discussing potential financial and administrative effects of
automatically updating the salary levels on an annual basis. Both of
these broad categories of comments are discussed below.
Some commenters cited the Department's past refusal to institute
automatic updating and emphasized that the part 541 regulations have
benefited from the rulemaking process. For example, the Chamber, FMI,
and others stated that rulemaking has generated vigorous public debate
about the salary levels, and that the Department has increased and
decreased proposed salary levels in response to public comment--
including in 2004 when the Department increased the proposed salary
level and HCE compensation requirements in our final rule. PPWO stated
that the ``Department's own actions in reaching out to the regulated
community before publication of the NPRM, as well as soliciting input
on the salary level in the NPRM itself, demonstrate the importance of
notice-and-comment on the salary level.''
Many commenters stated that the Department should only update the
salary level when conditions warrant, not automatically. CUPA-HR
commented that the rates of increase and the duration between updates
have always varied as the Department has tailored the salary levels
``to ensure that the exemptions remained true to their purpose in the
face of changing workforces and changing economic circumstances.'' NGA
cited the statement in the 2004 Final Rule that ``salary levels should
be adjusted when wage survey data or other policy concerns support such
a change,'' 69 FR 22171, and stated that the Department should only
change the salary level when changes in earnings are substantial.
Similarly, AH&LA, Island Hospitality Management, NCCR, and NRF all
stated that a salary increase ``should be based on an individualized
evaluation of economic conditions rather than an automatic arbitrary
formula.'' Other commenters expressed similar views. See, e.g.,
Agricultural Retailers Association and the Fertilizer Institute;
National Council of Farmers Cooperatives. PPWO contended that the
salary level needs to be ``fixed'' only ``when it approaches the end of
its usefulness.'' EEAC and Fisher & Phillips stated that the Department
could simply reallocate resources as necessary to maintain an
appropriate salary level without automatic updating.
Several commenters raised the related concern that automatic
updating could harm the economy by increasing the financial burden on
employers during economic downturns. The Chamber stated that either
proposed updating method would be slow to reflect actual economic
conditions, and would prevent employers from ``lowering salaries to
quickly respond to decreased revenue experienced in bad economic
times.'' Fisher & Phillips stated that automatic updating during
periods of high inflation could ``contribute to a serious inflationary
spiral.'' Analogizing to the minimum wage context, CalChamber Coalition
stated that automatic updates during economic downturns may lead
employers to reclassify more employees as nonexempt, reduce hours, and
increase layoffs.
[[Page 32435]]
Some commenters worried that automatic updating would create an
untenably high salary level that would harm low-income regions and
industries, and small businesses. For example, Alpha Graphics stated
that automatic updating would produce ``an inappropriately high level
in a matter of a few years,'' and NGA stated that salary level
increases would harm independent grocers with low profit margins
because the updating mechanism ``would not provide the necessary
protection for low-wage industries and geographic areas.'' See also,
e.g., ALFA; NFIB. SHRM expressed concern that automatic updating based
on a national salary level would not account for the fact that salaries
in all regions and industries do not rise at the same pace, and it
questioned whether the Department could realistically use additional
rulemaking to correct for regional disparities that may arise in the
future.
Several commenters asserted that updating is problematic regardless
of the updating method the Department chooses, with some suggesting
that the salary level and automatic updating are incompatible concepts.
Seyfarth Shaw stated that any updating method ``would establish an ad
hoc, artificially-created level determined by statistical
assumptions.'' See also Wendy's (describing the updating methods as
``based on untested and complicated methodologies''). EEAC expressed
concern that if the salary-setting methodology in this rulemaking
results in an incorrect salary level (as the Department now states was
the case in 2004) automatic updating would compound this error
indefinitely. NACS, the Southeastern Alliance of Child Care
Associations, and others stated that establishing an automatic updating
mechanism is inconsistent with the Department's recognition that ``the
line of demarcation'' provided by the salary test ``cannot be reduced
to a standard formula.''
As to the effect of automatic updating on salary level
predictability, PPWO stated that ``it will be difficult, if not
impossible, for employers and employees to determine with precision
each year's new salary level in advance of the Department's
pronouncement in the Federal Register,'' and AIA-PCI and the Clearing
House Association agreed that this uncertainty is demonstrated by the
Department's statement in the NPRM that ``the public will not be able
to exactly replicate the weekly earnings and percentiles'' used to
calculate the salary level, 80 FR 38528 n.24.
The Department recognizes that our automatic updating proposal has
elicited strong and diverse reactions from stakeholders. After review
of submitted comments, the Department remains convinced that
instituting an automatic updating mechanism is the best means of
ensuring that the salary level test continues to provide an effective
means of distinguishing between overtime-eligible white collar
employees and those who may be bona fide EAP employees, and continues
to work appropriately with the duties test.
The Department shares commenters' concerns that a fixed and
outdated salary level increases the number of low-salaried employees at
risk of being inappropriately classified as exempt as the real value of
the salary threshold falls, and that workers earning near the fixed
salary level when it is set are particularly vulnerable. The Department
also agrees with commenters that the updates to the salary level should
reflect prevailing economic conditions. The Department's updating
mechanism directly addresses both of these issues by ensuring that the
salary test level is based on the best available data and reflects
current salary conditions. As explained in more detail below, the
Department will use the updating mechanism established under new Sec.
541.607 to reset the salary level using the most recent BLS data on
earnings for salaried workers. Linking the salary level to earnings
ensures that economic changes that impact employee salaries are
reflected in the salary level test. Also, because regular updates will
ensure that the salary level is in step with prevailing economic
conditions, the Department does not believe that the updating mechanism
will lead to undue salary level increases during economic downturns or
other inopportune times. Salary level changes will occur at regular
intervals using a set methodology and a publicly available data source.
This improvement to the current regulations will benefit employers and
employees by replacing infrequent, and thus more drastic, salary level
changes with gradual changes occurring at predictable intervals.
The Department is committed to ensuring that the updating mechanism
yields a salary that is appropriate for low-wage industries and
geographic areas. As previously discussed in section IV.A.iv., in
response to commenters' concerns, the Department is setting the salary
level at the 40th percentile of weekly earnings of full-time salaried
workers in the lowest-wage Census Region (currently the South).
Commenters raised similar concerns about using a nationwide data set
for automatic updating. The reasons that supported changing from a
national to a regional data set in the standard salary level setting
context apply equally in the salary updating context, and new Sec.
541.607 accordingly incorporates this data set change.\75\ The
Department recognizes that salaries do not change at the same rate
nationwide, and this modification will ensure that any future increase
in earnings will only impact the standard salary level to the extent
that those gains are also realized by employees in the lowest-wage
Census Region. This change will also further guard against commenter
concerns that using a nationwide data set could lead to a standard
salary level increase that does not reflect the prevailing economic
climate.\76\
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\75\ Similarly, for the same reasons that the Department
declines commenter requests to institute a special salary level for
non-profit employers, we also decline to exempt non-profit employers
from automatically updated salary levels.
\76\ As explained in section IV.D., as in the 2004 Final Rule,
the Department is using a nationwide data set to set the HCE
compensation level in this rulemaking, and we will use nationwide
data to update the HCE compensation level. The use of nationwide
data is necessary to ensure that overtime-eligible workers in high-
wage areas are not inappropriately exempted based upon the HCE
exemption's minimal duties test.
---------------------------------------------------------------------------
Experience has shown that the salary level test is only a strong
measure of exempt status if it is up to date, and that left unchanged
the test becomes substantially less effective as wages for overtime-
protected workers increase over time. As we explained in the NPRM,
competing regulatory priorities, overall agency workload, and the time-
intensive nature of notice and comment rulemaking have all contributed
to the Department only having updated the salary level once since 1975
(in 2004). In the 2004 Final Rule the Department expressed the intent
to ``update the salary levels on a more regular basis,'' 69 FR 22171,
yet more than a decade has passed since the last update. While some
commenters viewed this inaction and the Department's past decision not
to institute automatic updating as reason for withdrawing our current
proposal, we believe this history underscores the appropriateness of
adding an automatic updating provision to the regulations.
Contrary to several commenters' concerns, prior Department
statements about the salary level test in no way undermine the
Department's decision now to incorporate an automatic updating
mechanism into the regulations. The Department's statement that the
``line of demarcation'' between exempt and nonexempt employees ``cannot
be reduced to a standard formula,'' 80 FR 38527, simply reflects
[[Page 32436]]
our continued belief that no single formula can unerringly separate
exempt and nonexempt employees, and that the salary test must therefore
work in tandem with the duties test for the EAP exemption to function
effectively. The salary level test remains the ``best single test'' of
exempt status, Stein Report at 19, and the method for setting and
updating the salary level adopted through this rulemaking represents
the Department's best determination of the appropriate dividing line
between exempt and nonexempt workers, when paired with the standard
duties test. While the precise updating ``formula'' chosen--the 40th
percentile of weekly earnings of full-time salaried workers in the
lowest-wage Census Region--is new, the underlying methodology is
broadly consistent with the Department's past salary setting methods,
see section IV.A.i., and the salary setting and updating methodology
have been promulgated through notice and comment rulemaking.
The Department agrees with commenters that stated that automatic
updating will increase predictability in both the frequency and size of
salary level changes, benefiting employers and employees alike. We find
to be unfounded comments that salary level unpredictability is evident
from our statement that ``the public will not be able to exactly
replicate the weekly earnings and percentiles [used to calculate the
salary level] from the public-use files made available by BLS.'' 80 FR
38528 n.24. This explanatory footnote addressed the public's ability to
duplicate BLS' deciles table using the public-use data. The referenced
discrepancy is very small, and in no way compromises the public's
ability to estimate future salary level changes based on the trend in
quarterly earnings data published by BLS.\77\ As discussed in the NPRM
and above in section IV.A.iv., the Department will update the salary
level using the deciles table for Census Regions as published by BLS,
without modifying the data in any way or otherwise engaging in complex
data analysis. This process is transparent, predictable, and
straightforward.
---------------------------------------------------------------------------
\77\ As we noted in the NPRM, to ensure the confidentiality of
survey respondents the data in all BLS public-use files use adjusted
weights and therefore minor discrepancies between internal BLS files
and public-use files exist. See 80 FR 38528 n.24. This means that
the public will be able to estimate future salary levels based on
BLS' regularly published regional deciles, but will not be able to
precisely recreate the salary amounts in the published deciles due
to minor adjustments in the publically available data.
---------------------------------------------------------------------------
The essentially ministerial act of applying the updating mechanism
to maintain the salary level underscores why the Department does not
share commenter concerns about resetting the salary level without
further rulemaking. The Department agrees with commenters that past
salary level changes have benefited from (and required) notice and
comment rulemaking. This rulemaking is no exception, as public feedback
was critical to finalizing the new standard salary level and the
automatic updating mechanism. In response to public comments, the
Department has changed the data set used for setting and updating the
salary level, and (as discussed in greater detail below) chosen to
update the salary using the ``fixed percentile'' approach, increased
the period between notice of the updated salary level and its effective
date, and changed the updating frequency. But unlike salary updates
made up to this point, which have all involved some change to the
salary setting methodology, salary level updates under new Sec.
541.607 will use a fixed methodology that (through this rulemaking) has
already been subject to notice and comment. Public feedback was
critical to finalizing the updating mechanism, but is unnecessary when
simply maintaining the salary level using this mechanism. Of course,
should the Department choose to make any changes to the updating
methodology in the future, such changes would require notice and
comment rulemaking.\78\
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\78\ Additionally, and as acknowledged in the NPRM, 80 FR 38522,
the Department will consider conducting a retrospective review of
this Final Rule at an appropriate future time. See Executive Order
13563 (Jan. 18, 2011); see also 5 U.S.C. 610.
---------------------------------------------------------------------------
The Department also disagrees with commenters that stated that we
should simply reallocate agency resources as necessary to maintain an
updated salary level. Whereas most regulations require a one-time
expenditure of resources to promulgate, and then once issued can remain
both unchanged and forceful for many years if not decades, without
automatic updating the Department would have to engage in nearly
continuous rulemaking to ensure that the salary test accurately
reflects employee salary levels. The new automatic updating mechanism
will enable the Department to maintain an effective and up-to-date
salary level, while preserving our ability to revisit the underlying
salary setting methodology through rulemaking as future conditions
warrant. For the above reasons, the Department is finalizing our
proposal to institute a regulatory mechanism for automatically updating
the salary level.
The Department received many comments expressing concern about the
financial and administrative burden that annual updating would impose
on employers. In particular, many commenters stated that annual
updating would require employers to conduct a yearly ``classification
analysis''--to assess employee exemption status and determine whether
salary increases to preserve exempt status are warranted--and then
incur additional costs implementing any changes. AIA-PCI; see also,
e.g., Business Roundtable; Maryland Chamber of Commerce; PPWO. Several
commenters described these costs in detail. For example, the Chamber's
comment identified many common concerns:
The annual salary increase proposed by the Department will
require an employer to: Analyze whether business conditions allow a
salary increase or whether they need to reclassify employees as non-
exempt; prepare new compensation plans for reclassified employees;
develop materials to explain the reclassification to employees;
review timekeeping and payroll systems to ensure compliance with the
FLSA recordkeeping requirements and compliant overtime calculations;
review or adopt new policies for the reclassified employees,
including policies prohibiting off-the-clock work, when employees
will be permitted to work overtime, payment for waiting time,
training time and travel time, etc.; train the reclassified
employees, and the managers who supervise them on recording time and
other wage-hour topics. If the salary change is implemented as
proposed, a large number of workers will have to be added to
timekeeping systems. This may require server and system upgrades to
account for the additional users. Best practices take time.
Additionally, ABA stated that automatic updating would require
employers to consider whether to restructure the duties of newly
nonexempt employees, and NFIB stated that it would require employers to
annually ``reassess potential raises, bonuses, or promotions'' for
employees. Seyfarth Shaw and others stated that the Department
significantly underestimated the cost and time obligations associated
with these actions.
Multiple commenters also emphasized that annual updating would
negatively impact employer budgets and budget planning. NALP, NGA, NRF,
Wendy's, and others stated that not knowing employee exemption status
from year to year would make it more difficult for employers to
forecast costs or profit margins. CUPA-HR stated that in response to a
survey of its members about the Department's proposal, 91 percent of
respondents stated that automatic updating as proposed would
[[Page 32437]]
negatively impact their budgets, while 63.6 percent said this change
would negatively impact financial planning ability. The California
State Association of Counties stated that annual updating would be
especially hard for public entities because ``public sector salaries
are generally not as flexible as private sector salaries and have many
additional constraints, including bargaining agreements, restricted
sources of revenue, and civil service rules.'' Similarly, several
commenters stated that updating would be particularly difficult for
non-profit employers that have limited ability to increase revenue in
response to increased labor costs. See, e.g., American Academy of
Otolaryngic Allergy; BSA; USPIRG. WorldatWork stated that budget
overruns resulting from annual salary increases could deplete capital
available for other business areas such as research and development,
business equity for future growth, or voluntary employer contributions
to retirement plans, and FMI stated that budgetary uncertainty and the
``specter of unexpected cost increases provides disincentives for
businesses to engage in capital spending and increase hiring and
thereby grow the economy.''
Several commenters expressed concern that updating could create
``salary compression'' issues and impede employers' ability to give
merit-based salary increases. To illustrate these interrelated
concerns, SHRM provided a hypothetical in which ten exempt employees
earn $975 per week (above the 2016 salary level of $970 predicted in
the NPRM), and an employer budgets for a three percent annual salary
increase (totaling $15,210). SHRM contended that without automatic
updating the employer could reward better performing employees with
large raises and give lower raises or no raise to average or poor
performers. If, however, the salary level were automatically increased
by two percent, the employer ``would be required to adjust all ten
salaries up to $989 per week in order to maintain their exempt
status,'' significantly reducing the total amount available for merit
increases. SHRM concluded that after several automatic updates ``the
gap in pay between more senior and less senior, more experienced and
less experienced, or more productive and less productive employees will
become smaller over time, creating significant morale problems and
other management challenges.'' AIA-PCI stated that automatic updating
would in many instances place ``an artificial obligation on the company
to provide a salary increase to an underperforming employee . . .
simply to maintain the employee's exempt status,'' and NGA stated that
if ``managers know they will receive an automatic raise each year by
meeting minimum performance standards, they have little incentive to
work increased hours and take on more responsibility while also
maintaining a high performance level.'' Relatedly, several commenters,
including IFA, Littler Mendelson, and Fisher & Phillips, stated that in
addition to raising employee salaries to maintain their exempt status,
employers will have to raise the salaries of those earning above the
salary threshold to avoid compression in compensation scales among
exempt employees.
Some commenters stated that automatic updating would also adversely
impact employees. AH&LA, NRF, and others stated that annual updating
would create instability in employee compensation and benefits (which
are often tied to exempt status) and that employers would likely reduce
exempt employee benefits to cover annual updating's administrative
costs. Similarly, AT&T stated that uncertainty about employees' year-
to-year exemption status will likely cause companies to ``hedge against
unanticipated overtime payments, thereby putting downward pressure on
annual salary increases.'' Other commenters stated that possible
changes in exempt status and employers' inability to provide merit
increases will undermine employee morale. See, e.g., CUPA-HR; Seyfarth
Shaw. IFA asserted that such complexities illustrate that an automatic
updating mechanism is inconsistent with the President's directive to
``modernize'' the EAP regulations.
The Department acknowledges employers' strong views on the
financial and administrative considerations associated with annual
automatic updating, and we agree that updating the salary level
annually may increase the impact on employers. In particular, we agree
that this change may require employers to reassess employee exemption
status more frequently and in some instances to more closely monitor
hours of newly overtime-eligible employees. These costs are discussed
in greater detail in the Department's economic impact analysis, see
section VI.D.x. However, the link between automatic updating and other
costs commenters have raised is less clear and was generally not
supported by data in the comments. Moreover, many commenters did not
address the fact that the alternative to automatic updating is not a
permanent fixed standard salary level, but instead larger changes to
the standard salary level that would occur during irregular future
updates.
The Department believes that in several respects commenters
overstated the impact of automatic updating on employers. In some
instances commenters failed to account for existing employer practices.
For example, the concern that automatic updating will require employers
to develop policies and trainings to explain reclassification to newly
overtime-eligible employees ignores that employers already have
overtime-eligible employees and thus typically have these procedures in
place. Additionally, many commenters conflated the distinction between
costs associated with the current salary increase (to $913), and those
due to future automatic updates. For example, the cost of adding newly
overtime-eligible workers to timekeeping systems and reviewing
timekeeping and payroll systems to ensure compliance with FLSA
recordkeeping requirements are likely overstated. These costs are
primarily incurred when employees are initially reclassified, and the
Department predicts that the number of reclassified employees at future
updates will be much smaller than the number reclassified at the
initial salary increase since the updating mechanism will change the
salary level regularly and incrementally, and the salary level is based
on actual wages of salaried workers.
The Department is also not persuaded that automatic updating (at
any frequency) will force employers to reward underperforming
employees, impede merit-based pay increases, or create salary
compression issues. These interrelated concerns arise from the faulty
premise that the automatic updating mechanism will in effect require
employers to increase salaries of all affected workers. This is not the
case as employers have many options for managing their workforces. The
updating mechanism simply adjusts the salary level to ensure that it
reflects prevailing salary conditions and can effectively work in
combination with the duties test to identify exempt and nonexempt
employees. Because any increase in the salary level is based on actual
increases in workers' salaries, employers may find that they are
already paying their exempt employees wages above the updated salary
level. Where this is not the case, employers can respond to salary
level updates by (for example) increasing employee pay to retain
overtime exempt status,
[[Page 32438]]
reclassifying employees to overtime-eligible status, decreasing hours
of newly overtime-eligible employees to avoid overtime, paying overtime
to newly overtime-eligible workers, redistributing hours among the
workforce, and/or hiring new employees. Similarly, employers are under
no obligation to reward underperforming employees with a raise (a
concern discussed in a number of comments). Employers can reclassify
such employees to nonexempt status, redistribute employee workloads, or
take any number of other managerial actions in lieu of increasing their
salary to maintain the exemption.
The Department is more persuaded by commenter concerns that annual
updating would inject uncertainty into the annual employer budgeting
process. While the ripple effects of this uncertainty on employee
compensation are open to debate, the immediate impact on employers is
clear. Although commenters often raised budgeting concerns as part of
their general opposition to automatic updating, closer examination
reveals that these concerns are closely linked to the updating
frequency. For example, comments that updating would impact employers'
ability to forecast profit margins, determine store and supply chain
labor costs, and plan and implement yearly salary increases, are all
most directly implicated by annual updating, as are government and non-
profit commenter concerns tied to the lack of short-term control over
revenue streams and employee costs. Even some of the commenters that
opposed automatic updating agreed that lengthening the period between
updates would help alleviate some employer concerns. See, e.g., CUPA-HR
(updating every five years ``could avoid many of the negative
consequences associated with automatic annual increases''); BSA.
Accordingly, the Department is modifying our proposal, which would have
updated the salary level annually.
Commenters that favored automatic updating often also favored
annual updates. See, e.g., Nichols Kaster; UFCW. Commenters that
opposed automatic updating expressed more varied opinions. AT&T, CUPA-
HR, SIFMA, and others favored updating no more frequently than every
five years, with some noting that this was the shortest interval
between the Department's past salary level updates (since 1940).
Notably, several of the commenters representing employer interests that
supported some form of automatic updating favored revisiting the salary
level every three years, see American Council of Engineering Companies;
American Resort Development Association; WMATA, as did several
commenters that opposed updating generally, see BSA (no more than every
two or three years); Fisher & Phillips (``not less than every three
years''). Other commenters favored other updating periods. See, e.g.,
Association of Regional Center Agencies (``no more frequently than
biennially'').
In response to commenter concerns about the burdens of annual
updating, and mindful of the range of views expressed on the
appropriate updating frequency, new Sec. 541.607 provides that
updating will occur every three years. This change from the
Department's proposal strikes an appropriate balance between ensuring
that the salary level remains an effective ``line of demarcation'' and
not burdening employers or their workforces with possible changes to
exemption status on a yearly basis. Increasing the time period between
updates will also decrease the direct costs associated with updating
because regulatory familiarization costs are only incurred in years in
which the salary is updated and the number of affected workers will
drop in years in which the salary is unchanged leading to lower
managerial costs in those years. Triennial updates using a fixed and
predictable method should significantly mitigate the annual budget
planning concerns that commenters raised. Additionally, employers will
always know when the salary level will be updated, and between updates
can access BLS data to estimate the likely size of this change.
Lengthening the updating frequency to three years also responds to
commenter concerns that minor year-to-year fluctuations in employee
earnings should not trigger reclassification analyses.
iii. Automatic Updating Method
The Department's proposal discussed and requested comments on two
alternative updating methodologies--updating using a fixed percentile
of full-time salaried employee earnings or using the CPI-U. As we
explained in our proposal, the fixed percentile approach would allow
the Department to reset the salary level test by applying the same
methodology proposed to set the initial salary level, whereas the CPI-U
approach would update the salary amount based on changes to the CPI-U--
a commonly used economic indicator for measuring inflation. The
Department's proposal did not express a preference for either updating
method and instead sought comments on these two alternatives.
The Department received numerous comments addressing these two
proposed updating methods, although many commenters that supported
automatic updating did not express a methodology preference. See, e.g.,
AARP; American Association of University Women; Legare, Atwood & Wolfe
law firm; Santa Clara County Probation Peace Officers' Union.
Commenters that favored automatic updating and expressed a preference
for a methodology generally preferred the fixed percentile approach,
although some favored the CPI-U method. Both of these groups of
commenters preferred either method to no automatic updating. Commenters
that opposed any form of automatic updating generally expressed
concerns with both updating methods. In some instances, however, these
commenters preferred a particular method (typically the CPI-U) should
the Department institute automatic updating. Additionally, a few
commenters suggested automatic updating methods not included in the
Department's proposal.
The majority of commenters that supported automatic updating and
expressed a methodology preference favored the fixed percentile
approach. Many of these commenters explained that the reasons for
initially setting the salary level at a fixed percentile of earnings of
full-time salaried workers also supported updating using the same
method. For example, NWLC stated that just as the Department determined
that ``looking to the actual earnings of workers provides the best
evidence of the rise in prevailing salary levels and, thus, constitutes
the best source for setting the proposed salary requirement,'' 80 FR
38533, automatic updating should be based on changes in earnings rather
than changes in prices. AFGE, EPI, IWPR, NEA, and many others agreed
that salary level updates should reflect changes in wages and not
prices, and thus favored updating using a wage index (i.e., the fixed
percentile approach) rather than a price index (i.e., the CPI-U). NELP,
the Partnership, and others added that a wage index is more appropriate
because wages are less volatile than prices and increase in a more
consistent and predictable fashion.
Commenters that favored the fixed percentile approach also
highlighted the link between wages and the EAP exemptions' purpose and
function. NELP stated that using a wage index is consistent with the
fact that the exemptions are intended to cover higher-paid employees in
the workforce, and NELA stated that this method reflects ``the fact
that the EAP exemption is, in many respects,
[[Page 32439]]
premised on an employee's relative position in the workplace'' and ``is
the fairest way to maintain consistency in workers' FLSA eligibility in
light of inevitable economic change.''
Of the relatively few commenters representing employer interests
that supported some form of automatic updating, several favored the
fixed percentile method. For example, SIGMA (which favored
automatically updating a salary level based on the 2004 method every
three to five years) stated that this approach ``will help the
threshold keep pace with actual wage changes in the market,'' while an
inflation-based index ``will risk harming workers and businesses''
because inflation and wages ``can increase at very different rates.''
Printing Industries of America and at least eight of its member
businesses agreed that ``[a]ny indexing should reflect wage changes.''
Similarly, CVS Health and several non-profit commenters (which
incorporated or referenced a comment submitted by ANCOR) favored the
fixed percentile approach over the CPI-U, provided in part that the
Department account for regional salary level disparities and update the
salary level on a less frequent basis than annually.
Most commenters representing employers opposed any form of
automatic updating, and many of these commenters strongly opposed
automatic updating using the fixed percentile method. The predominant
concern among commenters that opposed the fixed percentile approach was
that this method would produce drastic increases in the salary
threshold level arising from the updating method itself, rather than
from market forces. Some of these commenters predicted that employers
will respond to each salary level update by converting all or a certain
percentage of all full-time salaried employees earning below the new
EAP salary level to hourly status. See, e.g., Dollar Tree; HR Policy
Association. Others predicted employers would convert all or a certain
percentage of affected employees (i.e., those EAP employees earning
between the old and new salary levels) to hourly status. See, e.g.,
Chamber; FMI; Jackson Lewis; NAM; Small Business Legislative Council.
Both of these groups of commenters stated that such conversion would
decrease the number of salaried workers in the CPS data set by removing
those at the lower end of the salary distribution, which would produce
an upward shift (or ``ratcheting'') of the salary level with each
successive update. CUPA-HR, Fisher & Phillips, and others further
stated that if employers increase employee salaries to preserve exempt
status, this would apply further upward pressure on the 40th
percentile, and CUPA-HR and Seyfarth Shaw added that this effect would
also occur to the extent employers paid overtime to newly nonexempt
salaried workers but did not convert them to hourly pay.
Given these predictions, several commenters estimated the impact
that automatic updating using the fixed percentile approach would have
on the salary level. Many stated that salary level growth would far
exceed the 2.6 percent average annual growth rate for the 40th
percentile of full-time salaried workers' weekly earnings that the
Department estimated occurred between 2003 and 2013, 80 FR 38587. See,
e.g., IFA; Littler Mendelson; Seyfarth Shaw. Other commenters,
including the Chamber and FMI, submitted an Oxford Economics letter
(prepared for the NRF) which projected that by 2016 annual updating
would produce a salary level of approximately $1,400 per week assuming
all salaried employees below the standard salary level would be
converted to hourly. The Chamber and PPWO referenced (but did not
submit) an article from Edgeworth Economics, an employer consulting
firm, which stated that if 25 percent ``of the full-time nonhourly
workers earning less than [the 40th percentile salary level] were re-
classified as hourly workers,'' after five annual updates the salary
level would equal $72,436 annually ($1,393 per week). Other commenters
provided their own projections of salary level test growth. For
example, WorldatWork stated that after five annual updates the salary
level would reach $233,217, and HR Policy Association stated that if
``the bottom 20 percent of salaried employees'' are converted to hourly
status the salary level would increase on average by 18 percent per
year over five years. Such projections led several commenters to
conclude that automatic updating using the fixed percentile approach
would render the duties test increasingly obsolete and in effect
eliminate the availability of the EAP exemptions in many regions and
industries. See, e.g., NRA; Seyfarth Shaw. ABA captured the views of
several employer representatives in stating that, because of concerns
that the fixed percentile method would unduly accelerate salary level
test growth, automatic updating using the CPI-U is a ``less harmful
approach to a bad idea.'' See also NRA.
Most commenters representing employee interests did not discuss
whether automatic updating using the fixed percentile approach would
lead employers to convert large numbers of newly nonexempt employees to
hourly status. One exception was EPI, which stated that employer
projections of accelerated salary growth due to mass conversion of
employees to hourly pay were inaccurate because they underestimated
employee bargaining power by failing to account for low unemployment
rates and the fact that ``nominal wages are `sticky,' meaning that
employers rarely will lower them.'' EPI added that employers will have
a difficult time converting salaried workers to hourly status because
the new salary level will ``establish a clearly observable new norm in
the workplace'' and so it will ``be obvious to employees that any
reclassification will be done to disadvantage them.'' For these
reasons, EPI concluded that the ``wholesale reclassification of current
salaried workers to hourly status . . . seems an unlikely outcome.''
While employer commenters that opposed the fixed percentile
approach generally focused on the concerns discussed above, some
commenters also objected to this approach based on the same concerns
they raised with respect to the underlying salary level. Commenters
criticized the CPS data set, see, e.g., Fisher & Phillips, expressed
concern that the proposed methodology results in too high a salary
level for low-wage areas, see, e.g., ACRA, and asserted that updating
using the same methodology would ``compound the Department's error,''
see PPWO, in setting the salary level. These commenters opposed any
form of automatic updating, but deemed the fixed percentile method
particularly troubling.
The Department also received many comments from organizations and
individuals favoring automatic updating using the CPI-U. Overall, these
commenters addressed this issue in less detail than those that favored
the fixed percentile approach, often only stating that the salary level
should be updated based on inflation. While the majority of these
comments favoring updating using the CPI-U came from individuals, a few
employers and commenters representing them also supported this
approach. For example, HMR Acquisition Company favored indexing the
salary level to inflation (provided the Department also lowers and
phases in the new salary level requirement). Many individual commenters
also recommended updating using the CPI-U. For example, one human
resources professional suggested increasing the salary biennially
``with the national rate of inflation,'' another human resources
professional favoring this method stated that changes in the CPI-U are
``smaller and easier for employers to absorb,'' and
[[Page 32440]]
one individual stated that updating using the CPI-U ``will make sure
that the rises in the salary level and highly compensated level will
mirror economic changes, rather than create a base percentile change
yearly that may or may not work for all regions of the country.'' Board
Game Barrister stated that updating using the CPI-U ``is both
predictable and fair in preventing erosion of the salary test,'' while
the Illinois Credit Union League stated that credit unions are
``familiar with the CPI-U and utilize this standard when considering
salary increases.''
As previously discussed, among commenters representing employer
interests that opposed any form of automatic updating, concerns that
the fixed percentile approach would quickly escalate the salary level
led some commenters to reluctantly prefer the CPI-U. However, these
commenters often stressed that they only preferred this method if the
Department refused to withdraw the automatic updating proposal, and
they generally did not provide any additional grounds for supporting
use of the CPI-U as an updating mechanism. The Colorado Youth Corps
Association and Firehouse Subs appeared to support automatic updating
using the CPI-U provided that the Department set the initial salary
level lower. NRA (which opposed either updating method) provided
similar qualified support, stating that ``for CPI-U indexing to be
considered reasonable, the salary level itself needs to be
reasonable.''
Other commenters representing employer interests that opposed any
form of automatic updating provided reasons not to update the salary
level using the CPI-U. The Chamber, FMI, and others stressed that
prices and salaries are only correlated in the long-run. Seyfarth Shaw
opined that the ``CPI-U is a volatile index'' and that the basket of
goods used to calculate the CPI-U is ``not tied in any direct way to
employees' wages rates'' and is ``not an appropriate indicator of wage
growth (or decline).'' Relatedly, ACRA stated that the fact that there
have ``been periods where the CPI-U has outpaced wages and other
periods where wages have grown faster than CPI-U'' illustrates that the
CPI-U is ``an unreliable benchmark for wages.''
Several commenters worried that updating using the CPI-U would have
an adverse impact on low-wage regions and industries because inflation
does not impact all regions uniformly. For example, Dollar Tree
observed that the CPI-U ``focuses exclusively on urban areas, and
therefore fails to account for the rural economy and cost of living,''
and Lutheran Services in America Disability Network stated that this
updating method ``will disproportionately impact different regions,
potentially worsening the income disparity and inadvertently harming
workers.'' See also, e.g., ACRA; ANCOR; SIGMA. Other commenters
referenced the Department's past decision not to automatically update
the salary level using an inflationary index. Although this fact was
usually raised to assert that the Department lacked authority to
automatically update the salary level, Fisher & Phillips referenced the
Department's recognition in the NPRM that ``inflation has been used as
a method for setting the precise salary level only in the breach,''
(emphasis in comment), as indicating that the CPI-U would not be an
appropriate updating methodology. 80 FR 38533.
Finally, a few commenters suggested that the Department
automatically update the salary level using methods other than those
discussed in the NPRM. For example, AFL-CIO and AFSCME urged the
Department to consider updating the salary level using BLS' Employment
Cost Index for total compensation of management, professional, and
related workers. See also UFCW. Many commenters, including several
disability services providers, favored updating using ``regional salary
data.'' See, e.g., Lutheran Services in America. WMATA stated that
automatic updates affecting government entities should be tied to ``the
federal government's adjustments to General Schedule pay schedules,''
and the American Resort Development Association favored a fixed annual
increase of, for example, two percent. Fisher & Phillips, which opposed
both methods, wanted the Department to issue a new proposal to update
the salary level using internal Department data on likely exempt
workers.
The Department recognizes commenters' strong views on the proposed
automatic updating alternatives and has considered the comments
concerning this issue. The Department has determined that automatically
updating the salary level using a fixed percentile of earnings will
best ensure that the salary level test effectively differentiates
between bona fide EAP workers who are not entitled to overtime and
overtime-eligible white collar workers and continues to work
effectively with the duties test. Accordingly, new Sec. 541.607 will
reset the salary level triennially using the same methodology used in
this rulemaking to set the initial salary level--the 40th percentile of
earnings of full-time salaried workers in the country's lowest-wage
Census Region.
The Department agrees with the view of many commenters that the
same reasons that justify setting the salary level at a fixed
percentile of earnings of full-time salaried workers also support
updating using this method. As explained at length in section IV.A.,
setting the initial salary level equal to the 40th percentile of
earnings of full-time salaried workers in the South reflects the
Department's best determination of the appropriate line of demarcation
between exempt and nonexempt workers. This method provides necessary
protection for workers by accounting for the elimination of the more
stringent long duties test, while at the same time not excluding from
exemption too many employees performing EAP duties in low-wage
geographic areas, and yielding a lower salary that is appropriate
across industries. Likewise, applying this same methodology for
automatic updating is the most effective and transparent way to ensure
that future salary levels continue to fulfill these objectives and work
appropriately with the duties test.
Unlike the CPI-U method, updating the salary level based on the
40th percentile of earnings of full-time salaried workers in the
country's lowest-wage Census Region also eliminates the risk that
future salary levels will deviate from the underlying salary setting
methodology established in this rulemaking. Ensuring that the salary
level does not depart from the designated percentile ensures that the
salary level does not become too low--leading to an increased risk of
inappropriate classification of low-salaried employees as exempt--or
too high--depriving employers of the exemption for employees performing
bona fide EAP duties, and also ensures that the standard salary level
continues to work effectively with the standard duties test. For the
same reasons, the Department also declines to automatically update the
salary level using any of the suggested alternatives (such as the
Employment Cost Index, GS-Pay Scale, and others). These methods would
result in different salary level setting and updating methodologies and
thus increase the risk of future salary levels diverging from the
appropriate line of demarcation between exempt and nonexempt workers,
which would in turn necessitate additional rulemaking to reset the
salary level or updating methodology.
The Department also concludes that it is preferable to update the
salary level based on changes in earnings rather
[[Page 32441]]
than changes in prices. As many commenters observed, a wage index
provides the best evidence of changes in prevailing salary levels.
While wages and prices may be correlated in the long-run, linking the
salary level to earnings is the most direct way to ensure that the
salary level reflects prevailing economic conditions and can thus
fulfill its intended function. This approach is also consistent with
the Department's longstanding practice of basing the salary requirement
on actual salaries paid to workers. The salary level test works in
tandem with the duties test to operate effectively, and we agree with
the Chamber, FMI, and others that changes in job duties are more
closely correlated with changes in wages than in prices. Similarly,
using an earnings index for automatic updates is most consistent with
the Department's long-held view that ``the best single test of the
employer's good faith in attributing importance to the employee's
service is the amount [the employer] pays for them.'' Stein Report at
19. New Sec. 541.607 provides that automatic updates will be based on
CPS data for the 40th percentile of earnings of full-time salaried
workers in the country's lowest-wage Census Region. This data will be
readily available and transparent, and at the designated percentile is
representative of those employees who may be bona fide executive,
administrative, or professional workers.
Commenters that opposed the fixed percentile approach focused
primarily on their concern that this methodology would lead to drastic
salary level increases that would render the EAP exemptions virtually
obsolete in certain industries and geographic areas. The linchpin of
this ``ratcheting'' argument--and the crux of most opposition to the
fixed percentile updating method--is the belief that employers will
respond to an automatically updated salary level by converting newly
nonexempt workers to hourly status, thus removing them from the data
set of full-time salaried workers. The Department examined this issue
closely and concludes that past experience and the comments themselves
do not substantiate commenter concerns.
To evaluate the likelihood that salary level increases will lead
employers to convert affected employees to hourly pay status, the
Department first examined historical data concerning how employers
responded to the 2004 Final Rule's salary increase. This prior
rulemaking raised the standard salary level to 182 percent of the short
test salary level--from $250 to $455.\79\ As discussed in more detail
in section VI.D.ix., if the salary level increase in 2004 led employers
to convert significant numbers of workers to hourly status (as
commenters assert will result from this rulemaking), then we would
expect to see a notable increase in the share of workers earning just
below the new threshold ($455) who are paid hourly relative to the
share of workers earning just above the new threshold who are paid
hourly. The Department looked at the share of full-time white collar
workers paid on an hourly basis before and after the 2004 Final Rule
(January-March 2004; January-March 2005) both below and above the
standard salary level (at least $250 but less than $455 per week; at
least $455 but less than $600 per week). The Department found that
following the 2004 Final Rule, the share of full-time white collar
workers being paid hourly actually decreased marginally in the group
below the standard salary level and increased slightly in the group
above the standard salary level. See section VI.D.ix. These results do
not suggest that the 2004 salary level increase caused an increase in
the share of workers paid hourly below the new threshold, and thus
provide no evidence that salary level increases due to automatic
updating will result in employers converting significant numbers of
affected EAP workers to hourly pay status.\80\
---------------------------------------------------------------------------
\79\ The 2004 Final Rule increased the salary level from the
previous long test level of $155 per week (executive and
administrative exemptions) or $170 per week (professional exemption)
to $455 per week. For purposes of this analysis, the Department
compared the increase from the short test salary level ($250 per
week) since the long test was no longer operative due to increases
in the minimum wage.
\80\ To further test whether the widespread conversion to hourly
pay status of newly nonexempt employees predicted by some commenters
would occur, the Department also performed a similar analysis of
increases in the state EAP salary level in California in 2007-2008
and 2014. In 2007-2008, the results showed a decrease in the share
of full-time white collar workers paid on an hourly basis below the
new salary level, thus providing no evidence of a ``ratcheting''
effect. In 2014, the share of full-time white collar workers paid on
an hourly basis below the salary level increased marginally, but
this impact was not significantly different from the change in the
rest of the U.S. and thus provides no evidence that this effect was
caused by changes to the salary level.
---------------------------------------------------------------------------
In addition to the lack of historical data supporting commenters'
concerns, commenters failed to persuasively support their key
assumption that automatically updated salary levels will lead to
widespread conversion of employees to hourly pay status. Most of these
commenters, including Dollar Tree, Jackson Lewis, and several others
simply stated--without citing any supporting data--that automatic
updating would produce this effect, with several commenters mistakenly
contending that such a conversion to hourly status was automatic. Even
those commenters that provided more detailed economic analyses often
rested their views on the same faulty assumption. For example, the
submitted Oxford Economics letter assumed ``that the lowest 40% of the
salaried full-time wage distribution in 2016 were converted to hourly
status.'' Some commenters predicted the impact of automatic updating on
the salary level if a set percentage of employees were converted to
hourly pay. For example, HR Policy Association predicted the effect if
``the bottom 20 percent of salaried employees'' were converted to
hourly status, and the Chamber and PPWO (quoting an article from
Edgeworth Economics) commented on the impact if 25 percent ``of the
full-time nonhourly workers earning less than [the 40th percentile
salary level] were re-classified as hourly.'' But while these
commenters stressed the purported impact of these employee conversion
rates on the salary level, none explained why these rates are accurate
estimates of employer responses.\81\
---------------------------------------------------------------------------
\81\ Oxford Economics stated that its model was ``not meant as a
literal prediction of what the new rule would mean, since some non-
exempt workers still report salaried status in the Current
Population Survey, and since the process would be iterative.''
However, Oxford Economics did not attempt to quantify these other
factors to produce a more accurate estimate.
---------------------------------------------------------------------------
The Department believes that commenters that asserted that
``ratcheting'' will occur have greatly overestimated the number of
employees that employers may convert to hourly status, and the impact
that any such conversion would have on the salary level. Some
commenters assumed that all (or a certain percentage of all) full-time
salaried workers earning below the salary level would be converted to
hourly status and dropped from the data set. This assumption is plainly
erroneous because it fails to account for whether the employees perform
white collar work and are subject to the EAP exemption. Of the 18.6
million full-time salaried white collar workers earning below the $913
salary level, only 4.2 million are currently exempt and earn between
the current and new salary levels. The remaining 14.4 million workers
are not currently classified as exempt under the EAP exemption, and so
there is no reason to believe that their employers will convert them to
hourly pay status as a result of this rulemaking. Accordingly, salary
level predictions
[[Page 32442]]
that are grounded in the belief that a certain percentage of all
salaried workers will no longer be included in the BLS data set because
they will be converted to hourly pay status regardless of whether or
not they are affected by the rule are unsupported.
Other commenters predicted that employers would convert all (or a
significant percentage of) affected EAP employees to hourly status. The
Department believes that these predications are also inaccurate because
they fail to account for whether the affected employees work overtime.
As discussed in the economic impact analysis of this Final Rule, the
majority of workers affected by this rulemaking do not work more than
40 hours per week, and so employers will have no need to change their
compensation and can continue to pay them a salary. Even as to those
affected EAP workers who will become nonexempt and regularly or
occasionally work overtime (which the Department estimates will be
approximately 39 percent of the total number of affected EAP workers
when the salary level is updated to $913), there is no reason to
believe that employers will engage in wholesale conversion of these
employees to hourly status. Employers commented at great length during
outreach discussions prior to the publication of the NPRM and in the
submitted comments that employees desire to be salaried because of
status concerns. Also, the FLSA and regulations promulgated under it
expressly permit paying nonexempt employees a salary so long as they
receive overtime compensation when they exceed 40 hours during a
workweek. See Sec. Sec. 778.113-.114. The Department therefore
anticipates that employers will continue to pay many affected EAP
workers who work overtime on a salary basis, and these workers
therefore will remain part of the distribution of full-time salaried
workers. As discussed in detail later, our analysis of the impacts of
the 2004 Final Rule further supports our assumption that employers will
not convert large numbers of newly overtime-eligible salaried employees
to hourly pay status. Accordingly, the pool of workers who are likely
to be converted to hourly pay is much smaller than supposed by those
commenters that assert that the fixed percentile approach will lead to
drastic salary level increases.
To the extent that some affected EAP workers are converted to
hourly status and not included in the BLS data set of all salaried
workers, the Department believes this will have a negligible impact on
the salary level because this group would not constitute more than a
small fraction of the population of full-time salaried workers that
comprises the data set used to calculate the salary level. The
Department believes that employers will have little incentive to change
the pay status of those affected employees who do not work overtime
(60.4 percent of affected employees); similarly, employers will not
change the salaried status of those employees who work overtime and
whose salary is raised to maintain their exempt status (2.3 percent of
affected employees). The Department therefore believes that an upper
bound estimate of any potential ``ratcheting'' effect would assume the
conversion to hourly pay status of all newly nonexempt employees
working either occasional or regular overtime (approximately 37.3
percent of affected employees). Based on this assumption, the
Department estimated that the salary level as set in this Final Rule
(based on weekly earnings of full-time salaried workers in the South)
could be approximately two and a-half percent higher due to this effect
in 2026, after three updates. This estimate is significantly smaller
than the estimates provided by commenters that argued use of a fixed
percentile for updating would lead to widespread conversion of salaried
employees to hourly pay status. See section VI.D.ix.
The sample used to set the standard salary level--full-time
salaried workers in the South--represents 20 million workers,
including, for example, blue-collar salaried workers to whom this
rulemaking does not apply and overtime-eligible white collar employees.
The Department estimates that 671,000 affected EAP employees in the
South regularly or occasionally work overtime, which represents just
3.3 percent of the sample. For the reasons discussed above, many of
these workers are likely to remain salaried. But as noted above, even
if we assume that all affected employees who occasionally or regularly
work overtime are converted to hourly pay status (and therefore are no
longer part of the sample), the impact on the salary level will be
minimal because they constitute such a small percentage of the sample.
For the same reasons, the Department does not share commenter concerns
that the salary level will drastically increase if employers raise
affected employees' salaries to preserve their exempt status. The
Department estimates that approximately 43,000 affected employees in
the South will fall into this category, constituting just 0.2 percent
of the 20 million workers in the sample.
For the above reasons, the Department concludes that automatically
updating the salary level using a fixed percentile of earnings will not
cause the salary level to diverge from prevailing economic conditions,
and thus we do not share commenters' concerns about ``ratcheting'' or
believe that they provide a basis for declining to adopt the fixed
percentile updating method. Moreover, the Department's decision to
reset the salary level triennially (instead of annually) would further
minimize any ratcheting if such an effect were to occur.
Beyond concerns about a possible ratcheting effect, commenters
raised relatively few additional objections to the fixed percentile
method of automatic updating. The Department agrees with commenters
that updating the salary level using an inappropriate earnings
percentile would produce an improper salary level. However, for the
reasons previously discussed at length, the Department has concluded
that setting the salary level at the 40th percentile of earnings of
full-time salaried workers in the lowest-wage Census Region produces
the appropriate line of demarcation between exempt and nonexempt
workers. Similarly, the Department's decision to change the updating
mechanism from a nationwide to a regional data set addresses commenter
concerns about the impact of the fixed percentile approach on low-wage
regions and industries.
The Department believes that the chosen updating method is also
responsive to many of the reasons that commenters provided for
supporting updating using the CPI-U. For example, some commenters
lauded the CPI's familiarity and widespread acceptance. The CPS data
set is publicly available, as is BLS' deciles table for Census Regions
that the Department will use for automatic updates. Other commenters
stressed that updating using the CPI-U would ensure that the salary
level keeps pace with inflation. These commenters were generally
concerned with the adverse effect of a fixed salary level, as opposed
to the effect of updating using the CPI-U versus another approach. The
Department believes that a regularly updated salary level reflecting
changes in salaries paid will largely alleviate this inflation concern,
particularly to the extent that changes in wages and prices are
correlated over time. For all the above reasons, the Department has
decided to automatically update the salary level using the 40th
percentile of earnings of full-time salaried workers in the country's
lowest-wage Census Region.
[[Page 32443]]
The Department's proposal also sought public comment on whether
automatic updates to the salary level should take effect based on the
effective date of the Final Rule, on January 1, or on some other
specified date. The majority of commenters that addressed this issue
favored January 1. For example, Tinker Federal Credit Union stated that
this date corresponds with when their internal pay changes become
effective, and AH&LA stated that updating the salary level mid-year
could cause newly nonexempt employees to ``lose eligibility for a bonus
and fringe benefits that he or she was counting on when the year
began.'' Other commenters, including Nichols Kaster, Quicken Loans, and
several small businesses, also favored January 1. In contrast, other
organizations favored a July 1 effective date for automatically updated
salary levels. ANCOR and numerous other non-profit organizations
favored this date because their funding is linked to state budget
cycles, and the ``majority of states have a budget cycle that ends in
June.''
As multiple commenters observed, employers operate on varying
fiscal calendars, and so it is impossible for the Department to select
an effective date for automatically updated salary levels that will
suit everyone. After reviewing commenter submissions on this issue, the
Department has determined that future automatic updates to the salary
level will take effect on January 1. The Department believes this
effective date aligns with the pay practices of many employers and,
when combined with the 150-day advance notice period, will best promote
a smooth transition to new salary levels. While we recognize that some
commenters favored new rates taking effect on July 1 to account for
state budgeting cycles, any disruption caused by the January 1
effective date is mitigated by the Department's decision to update the
salary level every three years and increase the amount of notice before
automatically updated rates take effect. These changes ensure that
those who favored a different effective date have ample notice of both
when the Department will issue new salary levels and when these rates
will apply.\82\
---------------------------------------------------------------------------
\82\ The U.S. Department of Treasury-Office of Human Capital
Strategic Management asked that each automatically updated salary
level become effective at ``the start of the pay period following
the date of the annual adjustment'' in order to avoid having a new
salary level take effect in the middle of a pay period. We
appreciate this comment, but have decided not to institute this
requested change. The Department has always made new salary levels
effective on a specific date, rather than in relation to employer
pay periods. We believe this practice remains appropriate, and that
any administrative burden on employers will be minimal given that
salary level changes will occur triennially and the Department will
publish the new salary level in the Federal Register at least 150
days before it takes effect.
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The Department also proposed to publish a notice with the new
salary level in the Federal Register at least 60 days before the
updated rates would become effective. Commenters that explicitly
addressed this issue generally favored a longer notice period. For
example, the American Council of Engineering Companies supported
automatic updating but stated that ``120 days' notice would be more
workable for employers.'' Many commenters that opposed automatic
updating similarly sought more advance notice should the Department go
forward with the proposal. See, e.g., ABA (at least six months); CUPA-
HR (at least one year); SHRM (at least one year). Finally, some
commenters deemed 60 days of notice inadequate, but did not suggest an
alternative. See, e.g., Credit Union National Association; NFIB;
Seyfarth Shaw; University of Wisconsin.
In response to commenter concerns, the Department is increasing
from 60 to at least 150 days the amount of notice provided before the
updated salary level takes effect. The Department believes that this
change will provide employers sufficient time to adjust to the new
salary level, especially since (as previously discussed) between
updates employers will be able to access BLS data to help anticipate
the approximate size of the salary level change, while also ensuring
that salary level updates are based on the most recent available data.
This increase to 150 days is also more than the amount of notice the
Department has provided in each of our prior rulemakings increasing the
salary threshold. Accordingly, Sec. 541.607(g) states that the
Department will publish notice of the new salary level no later than
150 days before the updated rate takes effect.
As discussed in more detail in the economic impact analysis, the
Department will set the new salary level using BLS' deciles table of
Census Regions, without modifying the data in any way.\83\ In order to
ensure that the updated salary level is based on the most recent data,
the Department will use data from the second quarter (April--June) of
the year prior to the update. For example, the salary level that will
take effect on January 1, 2020 will be published in the Federal
Register on or before August 4, 2019, and will be based on BLS data for
the second quarter of 2019.
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\83\ This deciles table is currently available at: http://www.bls.gov/cps/research_series_earnings_nonhourly_workers.htm.
---------------------------------------------------------------------------
The Department also proposed to update the HCE total annual
compensation requirement with the same method and frequency used to
update the standard salary level test. Relatively few commenters
specifically addressed this aspect of the Department's proposal, and
those that did generally supported updating using the same method--the
fixed percentile approach or the CPI-U--used for updating the standard
salary level. See, e.g., NEA; NELA; Partnership; and several individual
commenters. Similarly, those that opposed automatically updating the
standard salary level also opposed automatically updating the HCE total
annual compensation requirement. See, e.g., PPWO; Seyfarth Shaw. In
light of these comments, and given our decision to update the standard
salary level using the fixed percentile method, the Final Rule provides
that the Department will automatically update the HCE total annual
compensation level triennially to keep it at the annualized value of
the 90th percentile of the weekly earnings of full-time salaried
workers nationwide. This updating methodology will ensure that only
those who are ``at the very top of [the] economic ladder'' satisfy the
total annual compensation requirement and are thus subject to a minimal
duties test analysis. 69 FR 22174. The Department also finalizes our
proposal to update the portion of the total annual compensation level
that employers must pay on a salary basis ($913 as of the effective
date of this rule) so that it continues to mirror the amount of the
standard salary requirement as it is updated. As previously discussed
in sections IV.C., highly compensated employees must receive at least
the standard salary amount each pay period on a salary or fee basis
without regard to the payment of nondiscretionary bonuses and incentive
payments.
Finally, the Department proposed to automatically update the
special salary level test for employees in American Samoa by keeping it
at 84 percent of the standard salary level, and to automatically update
the base rate test for motion picture industry employees by changing
the base rate proportionately to the change in the standard salary
level. See 80 FR 38541. The Department did not receive any comments
opposing these proposed updating mechanisms, and new Sec. Sec.
541.607(b) and (c) finalize these proposals.
[[Page 32444]]
F. Duties Requirements for Exemption
Examination of the duties performed by the employee has always been
an integral part of the determination of exempt status, and employers
must establish that the employee's ``primary duty'' is the performance
of exempt work in order for the exemption to apply. Each of the
categories included in section 13(a)(1) has separate duties
requirements. As previously discussed, from 1949 until 2004 the
regulations contained two different duties tests for executive,
administrative, and professional employees depending on the salary
level paid--a long duties test for employees paid a lower salary, and a
short duties test for employees paid at a higher salary level. The long
duties test included a 20 percent limit on the time spent on nonexempt
tasks (40 percent for employees in the retail or service industries).
In the 2004 Final Rule, the Department replaced the differing short and
long duties tests with a single standard test for executive,
administrative, and professional employees that did not include a cap
on the amount of nonexempt work that could be performed.
The Department has always recognized that the salary level test
works in tandem with the duties requirements to identify bona fide EAP
employees and protect the overtime rights of nonexempt white collar
workers. The Department has often noted that as salary levels rise a
less robust examination of the duties is needed. This inverse
correlation between the salary level and the need for an extensive
duties analysis was the basis of the historical short and long duties
tests. While the salary provides an initial bright-line test for EAP
exemption, application of a duties test is imperative to ensure that
overtime-eligible employees are not swept into the exemption. While the
contours of the duties tests have evolved over time, the Department has
steadfastly maintained that meeting a duties test remains a core
requirement for the exemption.
As explained in the NPRM, however, the Department is concerned that
under the current regulations employees in lower-level management
positions may be classified as exempt and thus ineligible for overtime
pay even though they are spending a significant amount of their work
time performing nonexempt work. In such cases, there is a question as
to whether the employees truly have a primary duty of EAP work. The
Department believes that our pairing in the 2004 rulemaking of a
standard duties test based on the less stringent short test for higher
paid employees, with a salary level based on the long test for lower
paid employees, has exacerbated these concerns and led to the
inappropriate classification as EAP exempt of employees who pass the
standard duties test but would have failed the long duties test. As we
noted in the NPRM, this issue can arise when a manager is performing
exempt duties less than 50 percent of the time, but it is argued that
those duties are sufficiently important to nonetheless be considered
the employee's primary duty. It can also arise when a manager who is
performing nonexempt duties much of the time is deemed to perform
exempt duties concurrently with those nonexempt duties, and it is
argued the employee is exempt on that basis.
While the Department believed that the proposed salary level
increase, coupled with automatic updates to maintain the effectiveness
of the salary level test, would address most of the concerns relating
to the application of the EAP exemption, we invited comments on whether
adjustments to the duties tests were also necessary. The Department did
not propose any specific changes to the duties tests, but instead
requested comment on a series of specific issues:
A. What, if any, changes should be made to the duties tests?
B. Should employees be required to spend a minimum amount of time
performing work that is their primary duty in order to qualify for
exemption? If so, what should that minimum amount be?
C. Should the Department look to the State of California's law
(requiring that 50 percent of an employee's time be spent exclusively
on work that is the employee's primary duty) as a model? Is some other
threshold that is less than 50 percent of an employee's time worked a
better indicator of the realities of the workplace today?
D. Does the single standard duties test for each exemption category
appropriately distinguish between exempt and nonexempt employees?
Should the Department reconsider our decision to eliminate the long/
short duties tests structure?
E. Is the concurrent duties regulation for executive employees
(allowing the performance of both exempt and nonexempt duties
concurrently) working appropriately or does it need to be modified to
avoid sweeping nonexempt employees into the exemption? Alternatively,
should there be a limitation on the amount of nonexempt work? To what
extent are exempt lower-level executive employees performing nonexempt
work?
Finally, the Department solicited feedback regarding whether to add
additional examples of specific occupations to the regulations to
provide guidance in administering the EAP exemptions, particularly for
employees in the computer and information technology industries. See 80
FR 38543.
After considering the comments received in response to the
questions posed in the NPRM, the Department has decided against making
any changes to the standard duties test or adding new examples to the
regulations at this time. The Department recognizes that stakeholders
have strong and divergent views about the standard duties test. We also
recognize that changes to the duties test can be more difficult for
employers and employees to both understand and implement. As explained
in greater detail below, the Department believes that the standard
salary level adopted in this Final Rule coupled with automatic updating
in the future will adequately address the problems and concerns that
motivated the questions posed in the NPRM about the standard duties
test.
As an initial matter, many commenters asserted that the Department
lacks the legal authority to enact any changes to the job duty
requirements in this Final Rule without first proposing specific
regulatory changes in a new NPRM. As we explained earlier with respect
to our automatic updating mechanism, nothing in the APA or other
referenced laws requires an agency's proposal to include regulatory
text for all provisions that may appear in a final rule. See section
IV.E.i.
There were some areas of agreement among the commenters in response
to the questions posed in the NPRM. For example, a wide cross-section
of commenters opposed the idea of reintroducing the long test/short
test structure that existed before the 2004 rulemaking. A joint comment
submitted by 57 labor law professors stated ``it is now true that
reimplementation of the two-tiered standards would serve to complicate,
rather than simplify, the test for the exemption currently in use.''
Commenters representing employers stated that resurrecting the pre-2004
long test/short test structure would contravene the President's
expressed intent to modernize and simplify the FLSA's overtime
regulations, and expressed concern about the burden such an approach
would impose. See, e.g., Fisher & Phillips; FMI; Littler Mendelson;
RILA; Seyfarth Shaw; Sheppard Mullin. Commenters representing employee
interests, such as NELA, explained that ``having two tests
[[Page 32445]]
resulted in inefficient litigation as to which test applied to which
employees for which periods of time,'' concluding that ``it is best to
proceed with a standard duties test supported by a realistic and fully
indexed salary level test.'' See also Employee Rights Advocacy Group;
Rudy, Exelrod, Zieff & Lowe.
Many commenters also seemed to appreciate the inverse relationship
between the duties test and the salary level test. For example,
although it disagreed with the Department's proposed standard salary
level, HR Policy Association stated it ``strongly agrees with the
Department that the proposed salary level increase addresses the
concerns relating to executive employees performing nonexempt duties.''
See also Employers Association of New Jersey. EEAC noted that ``a
robust salary threshold and strict duties tests'' (emphasis in comment)
would inappropriately screen out employees who should be classified as
exempt. Commenters including AFL-CIO and the Alaska Department of Labor
and Workforce Development, however, asserted that the proposed salary
level was not sufficiently high to work with the current duties test
and therefore the duties test needed to be strengthened.
Comments on the merits of changing the current duties requirements
were sharply divergent, with many employee advocates supporting
additional requirements to strengthen the standard duties test and most
employer organizations strongly opposing any changes. Commenters
representing employees generally asserted that changes to the standard
duties test are needed to narrow the scope of an FLSA exemption they
believe has been applied too broadly, as well as to reduce litigation
and compliance costs attributable to the ambiguity and subjectivity of
the primary duty test. Commenters representing employers generally
opposed changes to the current duties test on the grounds that the kind
of changes contemplated by the Department in the NPRM would be
excessively burdensome and disruptive for employers and undermine the
President's goal of modernizing the EAP regulations.
As a general matter, commenter views on the adequacy of the
regulation's existing duty requirements reflected their broader
disagreement over whether employees who pass the primary duty test but
perform substantial amounts of nonexempt work should qualify as ``bona
fide'' EAP workers. AFL-CIO, AFT, and SEIU, for example, stated that
the standard duties test undermines the breadth of coverage critical to
the success of the FLSA by allowing employers to exempt too many
workers performing substantial amounts of nonexempt work, including
workers earning more than the standard salary level proposed in the
Department's NPRM. In contrast, the American Staffing Association and
NSBA stated that the standard duties test appropriately emphasizes the
importance of an employee's primary duty, not incidental nonexempt
tasks he or she may also perform. Several commenters representing
employers asserted that the duties test must account for the fact that
exempt employees now perform more of their own clerical duties without
the support of nonexempt administrative support staff. See, e.g., Joint
Comment of the International Public Management Association for Human
Resources and the International Municipal Lawyers Association.
Employee and employer organizations similarly disagreed over
whether the current standard duties test adequately works to prevent
the misclassification of workers who do not meet the duties test and
thus should receive overtime pay. Commenters representing employees,
like NELP, stated that ambiguities in the existing duty requirements
``enable employers to easily and successfully manipulate employee job
titles to sweep more workers into the EAP exemptions.'' Some employers,
however, disagreed that non-compliance by employers is prevalent, with
SHRM asserting that there is no evidence that the standard duties test
leads to ``mass misclassification of employees.'' The New Jersey
Employers Association commented that purported non-compliance in
specific industries like restaurant or retail does not justify imposing
burdensome new requirements on all employers throughout the entire
economy.
Commenter views diverged even more sharply in response to the
specific issues raised for consideration. Many employee advocates
supported the introduction of a minimum requirement for time spent on
an employee's primary duty to the standard duties test. A large number
of these commenters endorsed the adoption of a California-style rule,
which would require at least 50 percent of an employee's time to be
spent exclusively on work that is the employee's primary duty. See,
e.g., AFSCME; Bend the Arc; ELC; Employment Justice Center; IWPR;
Moreland law firm; National Women's Law Center; NDWA; NELP; Northwest
Workers Justice Project; Partnership; SEIU; Shriver Center; Women
Employed; Workplace Fairness. Other employee advocates expressed the
point as a preference for a 50 percent limit on nonexempt work. See,
e.g., AFL-CIO; EPI; Nichols Kaster; Outten & Golden law firm. UFCW
supported a 40-percent limit on the performance of nonexempt work,
while Legare, Attwood & Wolfe supported reinstatement of the 20-percent
limit on nonexempt work that existed under the former long duties test.
In support of such requirements, AFL-CIO, EPI, NELA, Nichols
Kaster, and several other commenters asserted that employees who spend
a majority of their time performing nonexempt duties should not qualify
under the law as ``bona fide'' EAP workers. Legare, Attwood & Wolfe
stated that while the percentage of time an employee spends performing
duties is not a perfect indicator of her primary duty, it is a ``very
good proxy.'' ELC, the Moreland law firm, NELA, and several others
asserted that adding a ``bright-line'' quantitative component to the
standard duties test would simplify compliance or reduce FLSA
litigation attributable to the subjectivity of the primary duty test,
while AFL-CIO stated that implementing a more objective duties test
would lead to fewer ``anomalous outcomes'' from court decisions
analyzing similar sets of facts.
Several commenters representing employers addressed the issue of
concurrent duties--that is, the provision in the executive duties test
that permits employees to perform nonexempt duties while simultaneously
performing exempt management duties. See Sec. 541.106. A number of
employer representatives noted that the Department examined this issue
in 2004 when the concurrent duties regulation was promulgated as a
separate provision and asserted that there was no need for the
Department to alter the conclusions we reached at that time. See, e.g.,
Chamber; FMI; IFA; Littler Mendelson. Other commenters discussed how
the regulation applied to particular work environments. See, e.g., ACRA
(``Managers and assistant managers employed by ACRA's members often
`lead by example' by illustrating to subordinate employees how to
provide top-notch customer service and take pride in all aspects of
one's job.''); RILA (``Leading by example by lending a hand at the cash
register or on the sales floor is essential to employee training and
morale, as well as good customer service.''); Southeastern Alliance of
Child Care Associations (``The `concurrent duties' concept is of
particular relevance to the child care industry. Consider, as an
illustration, a director who, in cleaning and/or feeding
[[Page 32446]]
a young student, simultaneously trains a new teacher on how students
are to be cleaned and/or fed in compliance with state regulatory
requirements.''). UFCW, however, questioned whether employees were, in
fact, leading by example and pitching-in or, instead, were being
required by their employers to perform such large quantities of
nonexempt work that their primary duty could not be said to be
management. See UFCW (``many employers maintain policies which require
exempt managers to spend substantial periods of time performing
nonexempt hourly work'' because they ``do not budget sufficient hours
for nonexempt employees to complete the work.''). Some individual
commenters echoed this concern. For example, a retail store manager
described working 55-60 hours a week and because of low staffing noted
that he has little ``flexibility when an employee calls out sick. I
have to pick up the slack.'' Similarly, a manager of a community home
for the intellectually disabled stated that ``[t]o reduce
organizational overtime, managers are expected to work when employees
call in sick, are on leave, and when a client is in the hospital and
needs a 24 hour sitter.''
While few commenters representing employees specifically addressed
the concurrent duties provision, many endorsed California's duties
test, which NWLC observed does not allow employers to credit ``time
during which non-exempt work is performed concurrently.'' See Heyen v.
Safeway Inc., 157 Cal. Rptr. 3d 280, 299-304 (Cal. Ct. App. 2013). AFL-
CIO explained that it ``is not enough to require that `bona fide' EAP
employees spend 50 percent of their time doing exempt work: they must
spend 50 percent of their time exclusively on exempt work.'' (emphasis
in comment); see also NELA; UFCW. Outten & Golden explicitly requested
the Department to rescind the concurrent duties provision, asserting
that it contributes to the confusion surrounding the application of the
executive exemption and fails to account for instances ``when the
amount of non-exempt work overwhelms [an executive's] capacity to
perform their supervisory functions.''
Commenters representing employers strongly opposed the addition of
any kind of limitation on the performance of nonexempt work to the
standard duties test and any revisions to the concurrent duties
regulation, stating that such changes would fail to account for the
realities of the modern workplace. See, e.g., Chamber; HR Policy
Association; NCCR; NRF; NSBA; SIGMA. Further, many commenters,
including AH&LA, NRA, Petroleum Marketers Association of America, PPWO,
and SHRM, stated that imposing any quantitative restrictions or
eliminating the concurrent duties regulation would prevent exempt
employees from ``pitching in'' during staff shortages or busy periods,
increasing labor costs or negatively affecting business efficiency and
customer service. A few commenters representing employers also asserted
such changes would undermine the sense of teamwork in the workplace.
See, e.g., American Resort Developmental Association; NCCR; Weirich
Consulting.
AIA-PCI, NFIB, PPWO, and many others objected that introducing a
cap on nonexempt work to the standard duties test would also impose
significant recordkeeping burdens on employers, and several commenters,
including the Chamber, Littler Mendelson, and RILA, noted that the
Department previously acknowledged such concerns in the 2004 Final
Rule. See 69 FR 22127. Some commenters, including AH&LA and NFIB, also
asserted that the recordkeeping burden would at least partially fall
onto exempt employees themselves. In addition, many commenters
representing employers asserted that introducing a quantitative
component to the duties test would increase FLSA litigation due to the
administrative difficulties associated with tracking the hours of
exempt employees. See, e.g., AIA-PCI; CalChamber Coalition; Seyfarth
Shaw; Weirich Consulting. FMI, IFA, Littler Mendelson, and the Chamber
all noted that departing from the holistic approach to the standard
duties test would ``result in the upheaval of the past decade of case
law and agency opinions.''
After considering the comments, the Department has decided against
adding a quantitative limitation on the performance of nonexempt work
in the standard duties test, or making any other revisions to the
duties test in this rulemaking. The Department continues to believe
that, at some point, a disproportionate amount of time spent on
nonexempt duties may call into question whether an employee is, in
fact, a bona fide EAP employee. We also understand the concerns of some
commenters that contend that the qualitative nature of the primary duty
test may allow the classification of lower-level employees as exempt
and thus ineligible for overtime pay even though they are spending a
significant amount of work time performing nonexempt work. The
Department expects that setting the standard salary level at the 40th
percentile of weekly earnings of full-time salaried workers in the
lowest-wage Census Region and updating that salary level on a regular
basis going forward will address these concerns, which we believe are
most prevalent among low-salaried white collar employees. While this
salary level is lower than that proposed in the NPRM, the Department
believes that it is sufficient to work effectively in combination with
the current duties test. The Department will consider the impact of
this rule going forward to ensure that the salary level and the duties
test continue to work together to appropriately distinguish between
exempt EAP employees and overtime-protected white collar workers.\84\
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\84\ Some commenters, including AT&T, the Brevard Achievement
Center, Eden Financial, and the Nixon Peabody law firm, suggested
eliminating the duties test entirely, making exempt status dependent
on the amount of an employee's salary alone. As we have done in
prior rulemakings, we again reject such an approach as precluded by
the FLSA. As the Department said in 1949, the ``Administrator would
undoubtedly be exceeding his authority if he included within the
definition of these terms craftsmen, such as mechanics, carpenters,
or linotype operators, no matter how highly paid they might be.''
Weiss Report at 23. Most recently, in the 2004 Final Rule, we stated
``the Secretary does not have authority under the FLSA to adopt a
`salary only' test for exemption.'' 69 FR 22173. Our conclusion that
there is a necessity for the duties tests in order to define who is
a bona fide exempt EAP employee has not changed.
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The Department also understands the concerns of employers and their
advocates that prohibiting managers from ``pitching-in'' could
negatively affect the workplace. The Department believes, however, that
there is an important difference between a manager who occasionally
demonstrates how to properly stock shelves to instruct a new employee,
or who occasionally opens an additional cash register to assist in
clearing a line of waiting customers, and a manager who must routinely
perform significant amounts of nonexempt work because her employer does
not provide appropriate staffing on all shifts. See AH&LA (``In short,
when an exempt manager makes the decision that he or she needs to
perform non-exempt duties to help the operation run smoothly, the
manager's primary duty continues to be managing his or her staff and
the operations of their department.''); NRA (``Performing hands-on work
at the manager's own discretion to ensure that operations are
successfully run in no way compromises the fact that the manager's
primary responsibility is performing exempt work.''). In those
situations such as those described by employee commenters above, where
managers as a practical matter must perform significant amounts of
nonexempt work, the Department does
[[Page 32447]]
not believe that the manager is in any meaningful sense able to ``make
the decision regarding when to perform nonexempt duties'' and a close
examination of the specific facts must be made of whether the
employee's primary duty is, in fact, the performance of exempt work.
Sec. 541.106(a).
In the NPRM, the Department also sought feedback regarding whether
additional occupation examples should be added to the regulations, and,
if so, which specific examples would be most helpful to include. Some
commenters, including the American Staffing Association, the Maryland
Chamber of Commerce, and the Poarch Band of Creek Indians, agreed that
adding new examples to the regulations would be helpful in applying the
EAP exemption. The American Trucking Association stated that additional
regulatory examples would be particularly useful for clarifying the
administrative employee exemption, which many commenters asserted is
more ambiguous than the executive or professional exemptions. A number
of commenters offered specific suggestions of occupations they would
like to see addressed in the regulations. See, e.g., American Staffing
Association (staffing firm recruiters and account managers); American
Trucking Association (truck company dispatchers); Information
Technology Alliance for Public Sector (employees performing various
computer-related duties); Joint Comment of Postdoctoral Associations
and individuals (postdoctoral fellows); Printing Industries of America
(customer service representatives). The Fraternity Executives
Association, the International Association of Fire Chiefs, and the
Michigan Society of Association Executives, requested regulatory
examples relevant to associations, membership organizations and
charitable foundations.
ABA and several commenters representing employees, including AFL-
CIO, however, asserted that regulatory examples distract from the
longstanding principle that job titles alone are insufficient to
establish the exempt status of an employee. Nichols Kaster stated that
regulatory examples of exempt occupations ``encourage employers to
manipulate job descriptions to classify non-exempt employees as
exempt.'' Finally, AFL-CIO and NELA each stated that including
additional examples of generally exempt or generally nonexempt
occupations is neither helpful nor necessary.
Upon further consideration, the Department has decided against
introducing any new examples to the existing regulations in this
rulemaking. We note that the existing examples in the regulations do
not provide categorical exemptions for certain occupations but instead
set out typical job duties associated with specific occupations which
if performed by an employee generally would, or generally would not,
qualify the employee for exemption. In all instances, it is the
application of the duties test to the specific facts of the employee's
work that determines whether the employee satisfies the requirements
for the EAP exemption. Although the Department received feedback on
suggested regulatory examples from some commenters, the stakeholder
input we received overall did not justify the introduction of any new
examples into the EAP regulations at this time.
V. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its attendant regulations, 5 CFR part 1320, requires that the
Department consider the impact of paperwork and other information
collection burdens imposed on the public. Under the PRA, an agency may
not collect or sponsor the collection of information, nor may it impose
an information collection requirement unless it displays a currently
valid Office of Management and Budget (OMB) control number. See 5 CFR
1320.8(b)(3)(vi).
OMB has assigned control number 1235-0018 to the Fair Labor
Standards Act (FLSA) information collections. OMB has assigned control
number 1235-0021 to Employment Information Form collections, which the
Department uses to obtain information from complainants regarding FLSA
violations. In accordance with the PRA, the Department solicited
comments on the FLSA information collections and the Employment
Information Form collections in the NPRM published July 6, 2015, see 80
FR 38516, as the NPRM was expected to impact these collections. 44
U.S.C. 3506(c)(2). The Department also submitted a contemporaneous
request for OMB review of the proposed revisions to the FLSA
information collections, in accordance with 44 U.S.C. 3507(d). On
September 29, 2015, OMB issued a notice for each collection (1235-0018
and 1235-0021) that continued the previous approval of the FLSA
information collections and the Employment Information Form collections
under the existing terms of clearance. OMB asked the Department to
resubmit the information collection request upon promulgation of the
Final Rule and after considering public comments on the proposed rule
dated July 6, 2015.
Circumstances Necessitating Collection: The FLSA, 29 U.S.C. 201 et
seq., sets the federal minimum wage, overtime pay, recordkeeping and
youth employment standards of most general application. Section 11(c)
of the FLSA requires all employers covered by the FLSA to make, keep,
and preserve records of employees and of wages, hours, and other
conditions and practices of employment. An FLSA covered employer must
maintain the records for such period of time and make such reports as
prescribed by regulations issued by the Secretary of Labor. The
Department has promulgated regulations at part 516 to establish the
basic FLSA recordkeeping requirements, which are approved under OMB
control number 1235-0018.
FLSA section 11(a) provides that the Secretary of Labor may
investigate and gather data regarding the wages, hours, or other
conditions and practices of employment in any industry subject to the
FLSA, and may enter and inspect such places and such records (and make
such transcriptions thereof), question such employees, and investigate
such facts, conditions, practices, or matters deemed necessary or
appropriate to determine whether any person has violated any provision
of the FLSA. 29 U.S.C. 211(a). The information collection approved
under OMB control number 1235-0021 provides a method for the Wage and
Hour Division of the U.S. Department of Labor to obtain information
from complainants regarding alleged violations of the labor standards
the agency administers and enforces. This Final Rule revises the
existing information collections previously approved under OMB control
number 1235-0018 (Records to be Kept by Employers--Fair Labor Standards
Act) and OMB control number 1235-0021 (Employment Information Form).
This Final Rule does not impose new information collection
requirements; rather, burdens under existing requirements are expected
to increase as more employees receive minimum wage and overtime
protections due to the proposed increase in the salary level
requirement. More specifically, the changes adopted in this Final Rule
may cause an increase in burden on the regulated community because
employers will have additional employees to whom certain long-
established recordkeeping requirements apply (e.g., maintaining daily
records of hours worked by employees who are not exempt from the both
minimum wage and overtime provisions). Additionally,
[[Page 32448]]
the changes adopted in this Final Rule may cause an initial increase in
burden if more employees file a complaint with WHD to collect back
wages under the overtime pay requirements.
Public Comments: The Department sought public comments regarding
the burdens imposed by information collections contained in the
proposed rule. Several employer commenters and those representing them
stated that employers would need to maintain records of hours worked
for more employees as a result of our proposal to increase the salary
level. See, e.g., American Feed Industry Association; National Roofing
Contractors Association; Nebraska Furniture Mart. Many of these
comments came from individual employers as part of a campaign organized
by the National Automatic Merchandising Association (NAMA), stating
that the Department's proposal to raise the salary threshold would
``create a challenge by placing a burden on the employers to closely
track nonexempt employees' hours to ensure compliance with overtime pay
and other requirements,'' and this ``tracking of hours would also
produce increased human resources paperwork.'' The Office of Advocacy
of the U.S. Small Business Administration asserted that increasing the
salary level as the Department proposed would add ``significant''
paperwork burdens on small entities, ``particularly businesses in low
wage regions and in industries that operate with low profit margins.''
In addition, some commenters expressed concern that the Department's
cost estimates related to recordkeeping were too low, given that
employers would need to set up revised recordkeeping and payroll
systems for newly overtime-eligible employees. See, e.g., NSBA; Reid
Petroleum; SA Photonics; Seyfarth Shaw; Surescan Corporation. The
National Association for Home Care and Hospice asserted that if the
Department were to adopt the proposed salary level, home care and
hospice companies would need to ``completely modify their recordkeeping
on worker time,'' and ``such changes will double payroll management
costs.'' In response to these comments, the Department notes that we
believe that most employers currently have both exempt and nonexempt
workers and therefore have systems already in place for employers to
track hours. The Department also notes that commenters did not offer
alternatives for estimates or make suggestions regarding methodology
for the PRA burdens. The actual recordkeeping requirements are not
changing in the Final Rule. However, the pool of workers for whom an
employer will be required to make and maintain records has increased
under the Final Rule, and as a result the burden hours have increased.
Included in this PRA section are the regulatory familiarization costs
for this Final Rule. We note however, that this is a duplication of the
regulatory familiarization costs contained in the economic impact
analysis, see section VI.
A number of commenters also expressed concern about potential
changes to the duties tests. Some commenters specifically articulated
concern about implementing a percentage duties test. See, e.g.,
American Society of Association Executives (ASAE); Community Bankers
Association; International Franchise Association; Lutheran Services of
America; Society for Human Resources Management. For example, Walmart
stated that it ``would be concerned if such a proposal includes any
quantitative or time based assessment of an exempt employee's duties or
further, a prohibition on concurrent duties. Such changes would require
employers to undertake significant recordkeeping burdens and add to the
uncertainty over classifications.'' Other commenters expressed their
view that the Department would violate the PRA by making any changes to
the duties tests, because the Department did not provide specific
proposed changes to the duties tests in the NPRM. See, e.g., ASAE;
Christian Camp and Conference Association, International; Community
Bankers Association; Diving Equipment and Marketing Association; Equal
Employment Advisory Committee; International Bancshares Corporation,
International Dairy Foods Association; Island Hospitality Management;
National Council of Chain Restaurants; National Retail Federation; New
Jersey Association of Mental Health and Addiction Agencies;
Recreational Diving Industry; WorldatWork; YMCA-USA. Since the
Department has decided against enacting any changes to the standard
duties test or adding new examples to the current regulatory text at
this time, these commenters' concerns have been addressed.
An agency may not conduct an information collection unless it has a
currently valid OMB approval, and the Department has submitted the
identified information collection contained in the proposed rule to OMB
for review under the PRA under the Control Numbers 1235-0018 and 1235-
0021. See 44 U.S.C. 3507(d); 5 CFR 1320.11. The Department has
resubmitted the revised FLSA information collections to OMB for
approval, and intends to publish a notice announcing OMB's decision
regarding this information collection request. A copy of the
information collection request can be obtained at http://www.Reginfo.gov or by contacting the Wage and Hour Division as shown in
the FOR FURTHER INFORMATION CONTACT section of this preamble.
OMB Control Number: 1235-0018.
Affected Public: Businesses or other for-profit, farms, not-for-
profit institutions, state, local and tribal governments, and
individuals or households.
Total Respondents: 5,511,960 (2,506,666 affected by this Final
Rule).
Total Annual Responses: 46,057,855 (2,552,656 from this Final
Rule).
Estimated Burden Hours: 3,489,585 (2,506,666 from this Final Rule)
Estimated Time per Response: various.
Frequency: Various.
Total Burden Cost (capital/startup): 0.
Total Burden Costs (operation/maintenance): $126,392,768
($90,791,443 from this Final Rule).
Title: Employment Information Form.
OMB Control Number: 1235-0021.
Affected Public: Businesses or other for-profit, farms, not-for-
profit institutions, state, local and tribal governments, and
individuals or households.
Total Respondents: 37,367 (2,017 added by this rulemaking).
Estimated Number of Responses: 37,367 (2,017 added by this
rulemaking).
Estimated Burden Hours: 12,456 (672 hours added by this
rulemaking).
Estimated Time per Response: 20 minutes (unaffected by this
rulemaking).
Frequency: Once.
Other Burden Cost: 0.
VI. Analysis Conducted In Accordance with Executive Order 12866,
Regulatory Planning and Review, and Executive Order 13563, Improving
Regulation and Regulatory Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of a regulation and to adopt a regulation only upon
a reasoned determination that the regulation's net benefits (including
potential economic, environmental, public health and safety effects,
distributive impacts, and equity) justify its costs. Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
Under Executive Order 12866, the Office of Management and Budget
(OMB) must determine whether a regulatory action is a ``significant
[[Page 32449]]
regulatory action,'' which includes an action that has an annual effect
of $100 million or more on the economy. Significant regulatory actions
are subject to review by OMB. As described below, this Final Rule is
economically significant. Therefore, the Department has prepared a
Regulatory Impact Analysis (RIA) \85\ in connection with this Final
Rule as required under section 6(a)(3) of Executive Order 12866, and
OMB has reviewed the rule.
---------------------------------------------------------------------------
\85\ The terms ``regulatory impact analysis'' and ``economic
impact analysis'' are used interchangeably throughout this Final
Rule.
---------------------------------------------------------------------------
A. Introduction
i. Background
The Fair Labor Standards Act (FLSA or Act) requires covered
employers to: (1) Pay employees who are covered and not exempt from the
Act's requirements not less than the federal minimum wage for all hours
worked and overtime premium pay at a rate of not less than one and one-
half times the employee's regular rate of pay for all hours worked over
40 in a workweek, and (2) make, keep, and preserve records of the
persons employed by the employer and of the wages, hours, and other
conditions and practices of employment. It is widely recognized that
the general requirement that employers pay a premium rate of pay for
all hours worked over 40 in a workweek is a cornerstone of the Act,
grounded in two policy objectives. The first is to spread employment
(or, in other words, reduce involuntary unemployment) by incentivizing
employers to hire more employees rather than requiring existing
employees to work longer hours. The second policy objective is to
reduce overwork and its detrimental effect on the health and well-being
of workers.
The FLSA provides a number of exemptions from the Act's minimum
wage and overtime pay provisions, including one for bona fide
executive, administrative, and professional (EAP) employees. Such
employees perform work that cannot easily be spread to other workers
after 40 hours in a week and that is difficult to standardize to any
timeframe; they also typically receive more monetary and non-monetary
benefits than most blue collar and lower-level office workers. The
exemption applies to employees employed in a bona fide executive,
administrative, or professional capacity and for outside sales
employees, as those terms are ``defined and delimited'' by the
Department. 29 U.S.C. 213(a)(1). The Department's regulations
implementing these ``white collar'' exemptions are codified at part
541.
For an employer to exclude an employee from minimum wage and
overtime protection pursuant to the EAP exemption, the employee
generally must meet three criteria: (1) The employee must be paid a
predetermined and fixed salary that is not subject to reduction because
of variations in the quality or quantity of work performed (the
``salary basis test''); (2) the amount of salary paid must meet a
minimum specified amount (the ``salary level test''); and (3) the
employee's job duties must primarily involve executive, administrative,
or professional duties as defined by the regulations (the ``duties
test''). The Department has periodically updated the regulations
governing these tests since the FLSA's enactment in 1938, most recently
in 2004 when, among other revisions, the Department created the
standard duties test and paired it with a salary level test of $455 per
week. The Department also established an abbreviated duties test for
highly compensated employees (HCE)--i.e., white collar workers with a
total annual compensation of at least $100,000. To satisfy the total
annual compensation requirement, an employee must earn at least $455
per week on a salary or fee basis, and total annual compensation may
also include commissions, nondiscretionary bonuses, and other
nondiscretionary compensation.
As a result of inflation, the real value of the standard salary and
HCE compensation thresholds have fallen significantly since they were
set in 2004, making them inconsistent with Congress' intent to exempt
only ``bona fide'' EAP workers, who typically earn salaries well above
those of any workers they may supervise and presumably enjoy other
privileges of employment such as above average fringe benefits, greater
job security, and better opportunities for advancement. Stein Report at
21-22. For example, the annualized equivalent of the standard salary
level ($23,660, or $455 per week for 52 weeks) is now below the 2015
poverty threshold for a family of four ($24,036).\86\ Similarly, by
October 1, 2016, approximately 20 percent of full-time salaried workers
are projected to earn at least $100,000 annually, almost three times
the share who earned that amount when the HCE test was created.
---------------------------------------------------------------------------
\86\ This is the 2015 poverty threshold for a family of four
with two related people under 18 in the household. Available at:
http://www.census.gov/hhes/www/poverty/data/threshld/index.html.
---------------------------------------------------------------------------
The premise behind the standard salary level test and the HCE total
annual compensation requirement is that employers are more likely to
pay higher salaries to workers in bona fide EAP jobs. A high salary is
considered a measure of an employer's good faith in classifying an
employee as exempt, because an employer is less likely to have
misclassified a worker as exempt if he or she is paid a high wage.
Stein Report at 5; Weiss Report at 8.
The salary level requirement was created to identify the dividing
line distinguishing workers who may be performing exempt duties from
the nonexempt workers whom Congress intended to be protected by the
FLSA's minimum wage and overtime provisions. Throughout the regulatory
history of the FLSA, the Department has considered the salary level
test the ``best single test'' of exempt status. Stein Report at 19.
This bright-line test is easily observed, objective, and clear. Id.
ii. Need for Rulemaking
The salary level test has been updated seven times since it was
implemented in 1938. Table 1 presents the weekly salary levels
associated with the EAP exemptions since 1938, organized by exemption
and long/short/standard duties test.\87\
---------------------------------------------------------------------------
\87\ From 1949 until 2004 the regulations contained two
different tests for exemption--a long duties test for employees paid
a lower salary, and a short duties test for employees paid at a
higher salary level.
Table 1--Historical Salary Levels for the EAP Exemptions
----------------------------------------------------------------------------------------------------------------
Long test
Date enacted ------------------------------------------------ Short test
Executive Administrative Professional (all)
----------------------------------------------------------------------------------------------------------------
1938............................................ $30 $30 .............. ..............
1940............................................ 30 50 $50 ..............
1949............................................ 55 75 75 $100
1958............................................ 80 95 95 125
[[Page 32450]]
1963............................................ 100 100 115 150
1970............................................ 125 125 140 200
1975............................................ 155 155 170 250
----------------------------------------------------------------------------------------------------------------
Standard Test
----------------------------------------------------------------------------------------------------------------
2004............................................ $455
----------------------------------------------------------------------------------------------------------------
In 2004, the Department set the standard salary level at $455 per
week. Following more than ten years of inflation, the purchasing power,
or real value, of the standard salary level test has eroded
substantially, and as a result increasingly more workers earn above the
salary threshold. Between 2004 and 2015, the real value of the standard
salary level declined 20.3 percent, calculated using the Consumer Price
Index for all urban consumers (CPI-U).\88\ The decline is even larger
when comparing the salary level in 2015 with 1975 levels. Figure 1
demonstrates how the real values of the salary levels have changed
since 1938, measured in 2015 dollars. The Final Rule's standard salary
level is below the real value of the short test salary level in all
previous years when it was updated.
---------------------------------------------------------------------------
\88\ CPI-U data available at: http://data.bls.gov/cgi-bin/cpicalc.pl.
[GRAPHIC] [TIFF OMITTED] TR23MY16.000
As a result of the erosion of the real value of the standard salary
level, more and more workers lack the clear protection the salary level
test is meant to provide. Each year that the salary level is not
updated, its utility as a distinguishing mechanism between exempt and
nonexempt workers declines. The Department has revised the levels just
once in the 41 years since 1975. In contrast, in the 37 years between
1938 and 1975, salary test levels were increased approximately every
five to nine years. In our 2004 rulemaking, the Department stated the
intention to ``update the salary levels on a more regular basis, as it
did prior to 1975,'' and added that the ``salary levels should be
adjusted when wage survey data and other policy concerns support such a
change.'' 69 FR 22171. Now, in order to restore the value of the
standard salary level as a line of demarcation between those workers
for whom Congress intended to provide minimum wage and overtime
protections and those workers who may be performing bona fide EAP
duties, and to maintain its continued validity, in this Final Rule the
Department is setting the standard salary level equal to the 40th
percentile of weekly earnings of all full-time salaried workers in the
lowest-wage
[[Page 32451]]
Census Region. The Department determined the ``lowest-wage Census
Region'' by examining Current Population Survey (CPS) data for each
Census Region to find the region having the lowest salary amount at the
40th percentile of weekly earnings of full-time salaried workers, which
currently is the South.\89\ Based on the fourth quarter of 2015 CPS
data, the 40th percentile for the South Census Region is $913 per week.
To bring the HCE annual compensation requirement in line with the level
established in 2004, the Department, in this Final Rule, is setting the
HCE total annual compensation level at the 90th percentile of
annualized weekly earnings of full-time salaried workers nationally.
Based on the fourth quarter of 2015 CPS data, the HCE compensation
level is $134,004 annually.
---------------------------------------------------------------------------
\89\ For simplicity, in this rulemaking we refer to the lowest-
wage Census Region and the South interchangeably.
---------------------------------------------------------------------------
In addition, this Final Rule has introduced a mechanism to
automatically update the standard salary and HCE total annual
compensation levels every three years, with the first update taking
effect on January 1, 2020. This triennial automatic updating will
preserve the effectiveness of the salary level as a dividing line
between nonexempt workers and workers who may be exempt, eliminate the
volatility associated with previous changes in the thresholds, and
increase certainty for employers with respect to future changes. It
will also simplify the updating process, as the Department will simply
publish a notice in the Federal Register with the updated salary and
compensation thresholds at least 150 days in advance of the update, and
post the updated salary and compensation levels on the Wage and Hour
Division (WHD) Web site. Should the Department determine in the future
that changes in the updating methodology may be warranted, the
Department can engage in notice and comment rulemaking.
iii. Summary of Affected Workers, Costs, Benefits, and Transfers
The Department estimated the number of affected workers and
quantified costs and transfer payments associated with this Final Rule.
To produce these estimates, the Department used data from the CPS, a
monthly survey of 60,000 households conducted by the U.S. Census
Bureau. Many of the data variables used in this analysis are from the
CPS's Merged Outgoing Rotation Group (MORG) data. The impacts
calculated by the Department in this analysis are based on FY2013-
FY2015 data projected to reflect FY2017. The Department used the same
data available to the public to analyze the impact of this Final
Rule.\90\ Data for FY2015 were the most recently available at the time
of writing.\91\ However, the Department pooled three years of data in
order to increase the sample size. Additionally, because the rulemaking
will take effect December 1, 2016, the Department has projected the
data to represent FY2017 as Year 1 (the fiscal year most similar to the
first year of implementation).
---------------------------------------------------------------------------
\90\ To ensure the confidentiality of survey respondents, data
in the public-use files use adjusted weights and top-coded earnings.
\91\ FY2015 includes October 1, 2014 through September 30, 2015.
---------------------------------------------------------------------------
Some commenters, such as the United States Chamber of Commerce
(Chamber), National Retail Federation (NRF), and the Florida Department
of Economic Opportunity (FL DEO), expressed concern that the estimated
impacts in the Preliminary Regulatory Impact Analysis (PRIA) are not
replicable. To the extent that these commenters suggested that the
entire PRIA was based on non-public data, the Department emphasizes
that we used the non-publicly available data only for determining
percentiles of the earnings distribution. As we noted in the NPRM, the
public will not be able to precisely recreate the salary amounts in the
published deciles because to ensure the confidentiality of survey
respondents, the data in BLS public-use files use adjusted weights and
therefore minor discrepancies between internal BLS files and public-use
files exist. See 80 FR 38528 n.24. Some commenters also asserted that
the methodology used in the PRIA to estimate the impact of this
rulemaking could not be replicated because the Department did not
sufficiently explain our analysis. The Department believes that the
analytic methodology was thoroughly described throughout the NPRM, PRIA
and Appendix A, 80 FR 38545-601. Nevertheless, we have provided
additional details in this RIA to address concerns about replicability.
The Department estimates that in FY2017, there will be 44.8 million
white collar salaried employees who do not qualify for any other FLSA
exemption and therefore may be affected by a change to the Department's
part 541 regulations (Table 7). Of these workers, the Department
estimates that 29.9 million would be exempt from the minimum wage and
overtime pay provisions under the part 541 EAP exemptions (in the
baseline scenario without the rule taking effect). The other 14.9
million workers do not satisfy the duties tests for EAP exemption and/
or earn less than $455 per week (Table 7).\92\ However, of the 29.9
million EAP-exempt workers, 7.4 million are in ``named occupations''
and thus need only pass the duties tests to be subject to the standard
EAP exemptions.\93\ Therefore, these workers are not considered in the
analysis, leaving 22.5 million EAP-exempt workers potentially affected
by this Final Rule.
---------------------------------------------------------------------------
\92\ Here and elsewhere in this analysis, numbers are reported
at varying levels of aggregation, and are generally rounded to a
single decimal point. However, calculations are performed using
exact numbers. Therefore, some numbers may not match the reported
total or the calculation shown due to rounding of components.
\93\ Workers not subject to the EAP salary level test include
teachers, academic administrative personnel, physicians, lawyers,
judges, and outside sales workers.
---------------------------------------------------------------------------
In Year 1, an estimated 4.2 million workers will be affected by the
increase in the standard salary level test (Table 2). This figure
consists of currently EAP-exempt workers subject to the salary level
test who earn at least $455 per week but less than the 40th percentile
of full-time salaried workers in the South ($913). Additionally, an
estimated 65,000 workers will be affected by the increase in the HCE
compensation test.\94\ Finally, 732,000 white collar, salaried workers
making between $455 and $913 who do not meet the duties test are
already overtime eligible but do not receive overtime pay because they
are misclassified. While these workers are not ``affected'' by the
Final Rule because their entitlement to overtime will not change, as a
result of the change in the salary level their exemption status will be
clear based on the salary test alone and they will no longer be
misclassified due to misapplication of the duties test. In Year 10,
with automatic updating,\95\ 5.0 million workers are projected to be
affected by the change in the standard salary level test and 217,000
workers will be affected by the change in the HCE total annual
compensation test.
---------------------------------------------------------------------------
\94\ In later years, earnings growth will cause some workers to
no longer be affected in those years because their earnings will
exceed the salary threshold. Additionally, some workers will become
newly affected because their earnings will exceed $455 per week, and
in the absence of this Final Rule would have lost their overtime
protections. In order to estimate the total number of affected
workers over time, the Department accounts for both of these
effects. Thus, in Year 2, an estimated 4.0 million workers will be
affected, and by Year 10, an estimated 5.3 million workers will be
affected.
\95\ Future automatic updates to the standard salary and HCE
compensation level requirements will occur in Years 4, 7, and 10.
---------------------------------------------------------------------------
[[Page 32452]]
Three direct costs to employers are quantified in this analysis:
(1) Regulatory familiarization costs; (2) adjustment costs; and (3)
managerial costs. Regulatory familiarization costs are the costs
incurred to read and become familiar with the requirements of the rule.
Adjustment costs are the costs accrued to determine workers' new
exemption statuses, notify employees of policy changes, and update
payroll systems. Managerial costs associated with this Final Rule occur
because hours of workers who are newly entitled to overtime may be more
closely scheduled and monitored to minimize or avoid overtime hours
worked.
The costs presented here are the combined costs for both the change
in the standard salary level test and the HCE annual compensation level
(these will be disaggregated in section VI.D.iii.). Total average
annualized direct employer costs over the first 10 years are estimated
to be $295.1 million, assuming a 7 percent discount rate; hereafter,
unless otherwise specified, average annualized values will be presented
using the 7 percent real discount rate (Table 2). Deadweight loss (DWL)
is also a cost but not a direct employer cost. DWL is a function of the
difference between the wage employers are willing to pay for the hours
lost, and the wage workers are willing to take for those hours. In
other words, DWL represents the decrease in total economic surplus in
the market arising from the change in the regulation. The Department
estimates average annualized DWL to be $9.2 million.\96\
---------------------------------------------------------------------------
\96\ The estimate of DWL assumes the market meets the
theoretical conditions for an efficient market in the absence of
this intervention (e.g., all conditions of a perfectly competitive
market hold: full information, no barriers to entry, etc.). Since
labor markets are generally not perfectly competitive, this is
likely an overestimate of the DWL.
---------------------------------------------------------------------------
In addition to the costs described above, this Final Rule will also
transfer income from employers to employees in the form of wages. The
Department estimates average annualized transfers will be $1,189.1
million. The majority of these transfers are attributable to the FLSA's
overtime provision; a far smaller share is attributable to the FLSA's
minimum wage requirement. Transfers also include additional pay to
increase the salaries of some affected EAP workers who remain exempt.
Employers may incur additional costs, such as hiring new workers.
These other potential costs are discussed in section VI.D.iii. Benefits
of this Final Rule are discussed in section VI.D.vii.
Table 2--Summary of Regulatory Costs and Transfers, Standard and HCE Salary Levels
[Millions 2017$]
----------------------------------------------------------------------------------------------------------------
Future years \a\ Average annualized value
---------------------------------------------------
Impact Year 1 3% real 7% real
Year 2 Year 10 rate rate
----------------------------------------------------------------------------------------------------------------
Affected Workers (1,000s)
----------------------------------------------------------------------------------------------------------------
Standard....................................... 4,163 3,893 5,045 ........... ...........
HCE............................................ 65 73 217 ........... ...........
Total...................................... 4,228 3,965 5,261 ........... ...........
----------------------------------------------------------------------------------------------------------------
Costs and Transfers (Millions 2017$) \b\
----------------------------------------------------------------------------------------------------------------
Direct employer costs.......................... $677.9 $208.0 $284.2 $288.0 $295.1
Transfers \c\.................................. 1,285.2 936.5 1,607.2 1,201.6 1,189.1
DWL............................................ 6.4 8.7 11.1 9.3 9.2
----------------------------------------------------------------------------------------------------------------
\a\ These costs/transfers represent a range over the nine-year span.
\b\ Costs and transfers for affected workers passing the standard and HCE tests are combined.
\c\ This is the net transfer that we primarily describe as being from employers to workers. There may also be
transfers of hours and income from some workers to others. Moreover, some of these transfers may be
intrapersonal, for instance, higher earnings may be offset by increased hours worked for employees who remain
overtime-exempt or may be supplemented by reduced hours for some newly overtime-protected employees.
iv. Terminology and Abbreviations
The following terminology and abbreviations will be used throughout
this RIA.
Affected EAP workers: The population of potentially affected EAP
workers who either pass the standard duties test and earn at least
$455 but less than the new salary level of the 40th percentile of
weekly earnings of full-time salaried workers in the lowest-wage
Census Region (currently the South) ($913 in Year 1), or pass only
the HCE duties test and earn at least $100,000 but less than the
annualized earnings of the 90th percentile of full-time salaried
workers nationally ($134,004 in Year 1). This is estimated to be 4.2
million workers.\97\
---------------------------------------------------------------------------
\97\ Setting the standard salary level at the 40th percentile of
weekly earnings of full-time salaried workers in the South is
estimated to affect 4,163,000 workers. See Table 2. The estimate is
based on the effect of the change in overtime protection under the
FLSA from this Final Rule. It includes workers who may currently be
overtime-eligible under more protective state EAP laws and
regulations, such as some workers in Alaska, California, and New
York. Additionally, 65,000 workers are potentially affected by the
change in the HCE exemption's total compensation level. Id.
Accordingly, throughout this RIA we refer to the total affected
workers as 4.2 million (4,163,000 + 65,000, rounded to the nearest
100,000 workers).
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Baseline EAP exempt workers: The projected number of workers who
would be EAP exempt in FY2017 if the rulemaking did not take effect.
BLS: Bureau of Labor Statistics.
CPI-U: Consumer Price Index for all urban consumers.
CPS: Current Population Survey.
Duties test: To be exempt from the FLSA's minimum wage and
overtime requirements under section 13(a)(1), the employee's primary
job duty must involve bona fide executive, administrative, or
professional duties as defined by the regulations. The Department
distinguishes among four such tests:
Standard duties test: The duties test used in conjunction with
the standard salary level test, as set in 2004 and applied to date,
to determine eligibility for the EAP exemptions. It replaced the
short and long tests in effect from 1949 to 2004, but its criteria
closely follow those of the former short test.
HCE duties test: The duties test used in conjunction with the
HCE total annual compensation requirement, as set in 2004 and
applied to date, to determine eligibility for the HCE exemption. It
is much less stringent than the standard and short duties tests to
reflect that very highly paid employees are much more likely to be
properly classified as exempt.
Long duties test: One of two duties tests used from 1949 until
2004; this more restrictive duties test had a greater number of
requirements, including a limit on the amount of nonexempt work that
could be performed, and was used in conjunction with
[[Page 32453]]
a lower salary level to determine eligibility for the EAP exemptions
(see Table 1).
Short duties test: One of two duties tests used from 1949 to
2004; this less restrictive duties test had fewer requirements, did
not limit the amount of nonexempt work that could be performed, and
was used in conjunction with a higher salary level to determine
eligibility for the EAP exemptions (see Table 1).
DWL: Deadweight loss; the loss of economic efficiency that can
occur when the perfectly competitive equilibrium in a market for a
good or service is not achieved.
EAP: Executive, administrative, and professional.
FY: Fiscal year. The federal fiscal year is from October 1
through September 30.
HCE: Highly compensated employee; a category of EAP exempt
employee, established in 2004 and characterized by high earnings and
a minimal duties test.
Hourly wage: For the purpose of this RIA, the amount an employee
is paid for an hour of work.
Base hourly wage: The hourly wage excluding any overtime
payments. Also used to express the wage rate without accounting for
benefits.
Implicit hourly wage: Hourly wage calculated by dividing
reported weekly earnings by reported hours worked.
Straight time wage: Another term for the hourly wage excluding
any overtime payments.
MORG: Merged Outgoing Rotation Group supplement to the CPS.
Named occupations: Workers in named occupations are not subject
to the salary level or salary basis tests. These occupations include
teachers, academic administrative personnel,\98\ physicians,\99\
lawyers, judges,\100\ and outside sales workers.
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\98\ Academic administrative personnel (including admissions
counselors and academic counselors) need to be paid either (1) the
salary level or (2) a salary that is at least equal to the entrance
salary for teachers in the educational establishment at which they
are employed (see Sec. 541.204). Entrance salaries at the
educational establishment of employment cannot be distinguished in
the data and so this alternative is not considered (thus these
employees were excluded from the analysis, the same as was done in
the 2004 Final Rule).
\99\ The term physician includes medical doctors including
general practitioners and specialists, osteopathic physicians
(doctors of osteopathy), podiatrists, dentists (doctors of dental
medicine), and optometrists (doctors of optometry or with a Bachelor
of Science in optometry). Sec. 541.304(b).
\100\ Judges may not be considered ``employees'' under the FLSA
definition. However, since this distinction cannot be made in the
data, all judges are excluded (the same as was done in the 2004
Final Rule). Including these workers in the model as FLSA employees
would not impact the estimate of affected workers.
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Overtime workers: The Department distinguishes between two types
of overtime workers.
Occasional overtime workers: The Department uses two steps to
identify occasional overtime workers. First, all workers who report
they usually work 40 hours or less per week (identified with
variable PEHRUSL1 in CPS MORG) but in the survey (or reference) week
worked more than 40 hours (variable PEHRACT1 in CPS MORG) are
classified as occasional overtime workers. Second, some additional
workers who do not report usually working overtime and did not
report working overtime in the reference week are randomly selected
to be classified as occasional overtime workers so that the
proportion of workers who work overtime in our sample matches the
proportion of workers, measured using SIPP data, who work overtime
at some point in the year.
Regular overtime workers: Workers who report they usually work
more than 40 hours per week (identified with variable PEHRUSL1 in
CPS MORG).
Pooled data for FY2013-FY2015: CPS MORG data from FY2013-FY2015
adjusted to represent FY2015 with earnings inflated to FY2017
dollars and sample observations weighted to reflect projected
employment in FY2017. Pooled data were used to increase sample size.
Potentially affected EAP workers: EAP exempt workers who are not
in named occupations and are included in the analysis (i.e., white
collar, salaried, not eligible for another (non-EAP) overtime pay
exemption). This is estimated to be 22.5 million workers.
Price elasticity of demand (with respect to wage): The
percentage change in labor hours demanded in response to a one
percent change in wages.
Real dollars (2017$): Dollars adjusted using the CPI-U to
reflect the purchasing power they would have in FY2017.
Salary basis test: The EAP exemptions' requirement that workers
be paid on a salary basis, that is, a pre-determined amount that
cannot be reduced because of variations in the quality or quantity
of the employee's work.
Salary level test: The salary a worker must earn in order to be
subject to the EAP exemptions. The Department distinguishes among
four such tests:
Standard salary level: The weekly salary level associated with
the standard duties test that determines eligibility for the EAP
exemptions. The standard salary level was set at $455 per week in
the 2004 Final Rule.
HCE compensation level: Workers who meet the standard salary
level requirement but not the standard duties test nevertheless are
exempt if they pass a minimal duties test and earn at least the HCE
total annual compensation required amount. The HCE required
compensation level was set at $100,000 per year in the 2004 Final
Rule, of which at least $455 per week must be paid on a salary or
fee basis.
Short test salary level: The weekly salary level associated with
the short duties test (eliminated in 2004).
Long test salary level: The weekly salary level associated with
the long duties test (eliminated in 2004).
SIPP: Survey of Income and Program Participation.
Workers covered by the FLSA and subject to the Department's part
541 regulations: Includes all workers except those excluded from the
analysis because they are not covered by the FLSA or subject to the
Department's requirements. Excluded workers include: Members of the
military, unpaid volunteers, the self-employed, many religious
workers, and federal employees (with a few exceptions).\101\
---------------------------------------------------------------------------
\101\ Employees of firms with annual revenue less than $500,000
who are not engaged in interstate commerce are also not covered by
the FLSA. However, these workers are not excluded from this analysis
because the Department has no reliable way of estimating the size of
this worker population, although the Department believes it composes
a small percent of workers. These workers were also not excluded
from the 2004 Final Rule.
The Department also notes that the terms employee and worker are
used interchangeably throughout this analysis.
B. Methodology To Determine the Number of Potentially Affected EAP
Workers
i. Overview
This section explains the methodology used to estimate the number
of workers who are subject to the EAP exemptions. In this Final Rule,
as in the 2004 Final Rule, the Department estimated the number of EAP
exempt workers because there is no data source that identifies workers
as EAP exempt. Employers are not required to report EAP exempt workers
to any central agency or as part of any employee or establishment
survey.\102\ The methodology described here is largely based on the
approach the Department used in the 2004 Final Rule. 69 FR 22196-209.
All tables include projected estimates for FY2017, which begins on
October 1, 2016. Some tables also include estimates for FY2005 (the
first full fiscal year after the most recent increase to the salary
level was implemented) to demonstrate how the prevalence of the EAP
exemption has changed in the 12 years since our last rulemaking. We
note that the PRIA used calendar year 2005 whereas this Final Rule uses
FY2005. Therefore, the numbers have changed slightly. Figure 2
illustrates how the U.S. civilian workforce was analyzed through
successive stages to estimate the number of potentially affected EAP
workers.
---------------------------------------------------------------------------
\102\ RAND recently released results from a survey conducted to
estimate EAP exempt workers. However, this survey does not have the
variables or sample size necessary for the Department to base the
RIA on this analysis. These survey results were submitted by the
authors as a comment on the proposed rule. Rohwedder, S. and Wenger,
J.B. (2015). The Fair Labor Standards Act: Worker Misclassification
and the Hours and Earnings Effects of Expanded Coverage. RAND Labor
and Population.
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[[Page 32454]]
[GRAPHIC] [TIFF OMITTED] TR23MY16.001
ii. Data
The estimates of EAP exempt workers are based on data drawn from
the CPS MORG, which is sponsored jointly by the U.S. Census Bureau and
the BLS. The CPS is a large, nationally representative sample of the
labor force. Households are surveyed for four months, excluded from the
survey for eight months, surveyed for an additional four months, then
permanently dropped from the sample. During the last month of each
rotation in the sample (month 4 and month 16), employed respondents
complete a supplementary questionnaire in addition to the regular
survey.\103\ This supplement contains the detailed information on
earnings necessary to estimate a worker's exemption status. Responses
are based on the reference week, which is always the week that includes
the 12th day of the month.
---------------------------------------------------------------------------
\103\ This is the outgoing rotation group (ORG); however, this
analysis uses the data merged over twelve months and thus will be
referred to as MORG.
---------------------------------------------------------------------------
Although the CPS is a large scale survey, administered to 60,000
households representing the entire nation, it is still possible to have
relatively few observations when looking at subsets of employees, such
as exempt workers in a specific occupation employed in a specific
industry, or workers in a specific geographic location. To increase the
sample size, the Department pooled together three years of CPS MORG
data (FY2013 through FY2015). Earnings for each FY2013 and FY2014
observation were inflated to FY2015 dollars using the CPI-U, and the
weight of each observation was adjusted so that the total number of
potentially affected EAP workers in the pooled sample remained the same
as the number for the FY2015 CPS MORG. Thus, the pooled CPS MORG sample
uses roughly three times as many observations to represent the same
total number of workers in FY2015. The additional observations allow
the Department to better estimate certain attributes of the potentially
affected labor force.
Next, this pooled sample was adjusted to reflect the FY2017 economy
by further inflating wages and sampling weights to project to FY2017.
The Department applied two years of wage growth based on the average
annual growth rate in median wages. The wage growth rate is calculated
as the geometric growth rate in median wages using the historical CPS
MORG data for occupation-industry categories from FY2006 to
FY2014.104 105 The geometric growth rate is the constant
annual growth rate that when compounded (applied to the first year's
wage, then to the resulting second year's wage, etc.) yields the last
historical year's wage. This method only depends on the value of the
wage in the first available year and the last available year.\106\
---------------------------------------------------------------------------
\104\ In order to maximize the number of observations used in
calculating the median wage for each occupation-industry category,
three years of data were pooled for each of the endpoint years.
Specifically, data from FY2005, FY2006, and FY2007 (converted to
FY2006 dollars) were used to calculate the FY2006 median wage and
data from FY2013, FY2014, and FY2015 (converted to FY2014 dollars)
were used to calculate the FY2014 median wage.
\105\ In the NPRM only wage growth rates for exempt workers were
used; therefore, growth was based on historical wage growth for
exempt workers. Since the Final Rule projects all workers' earnings
for Year 1, wage growth was estimated for all workers based on the
historical growth rate for all workers. Additionally, for the Final
Rule, the Department projected earnings prior to determining which
workers are exempt, necessitating a change in the methodology.
\106\ The geometric mean may be a flawed measure if either or
both of those years were atypical; however, in this instance these
values seem typical. An alternative method would be to use the time
series of median wage data to estimate the linear trend in the
values and continue this to project future median wages. This method
may be preferred if either or both of the endpoint years are
outliers, since the trend will be less influenced by them. However,
the linear trend may be flawed if there are outliers in the interim
years. The Department chose to use the geometric mean because
individual year fluctuations are difficult to predict and applying
the geometric growth rate to each year provides a better estimate of
the long-term growth in wages.
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[[Page 32455]]
The geometric wage growth rate was also calculated from the BLS'
Occupational Employment Statistics (OES) survey and used as a validity
check.\107\ Additionally, in occupation-industry categories where the
CPS MORG data had an insufficient number of observations to reliably
calculate median wages, the Department used the growth rate in median
wages calculated from the OES data.\108\ Any remaining occupation-
industry combinations without estimated median growth rates were
assigned the median of the growth rates in median wages from the CPS
MORG data.
---------------------------------------------------------------------------
\107\ The OES growth measure compared median wages in the 2006
and the 2014 OES by industry-occupation combination. The difference
between the OES and CPS growth measures averaged 0.00173 percentage
points, but varied by up to 15.4 percentage points, depending on the
occupation-industry category.
\108\ To lessen small sample bias in the estimation of the
median growth rate, this rate was only calculated using CPS MORG
data when these data contained at least 10 observations in each time
period.
---------------------------------------------------------------------------
The employment growth rate is the geometric annual growth rate
based on the ten-year employment projection from BLS' National
Employment Matrix (NEM) for 2014 to 2024 within an occupation-industry
category. An alternative method is to spread the total change in the
level of employment over the ten years evenly across years (constant
change in the number employed). The Department believes that on average
employment is more likely to grow at a constant percentage rate rather
than by a constant level (a decreasing percentage rate). To account for
employment growth, the Department applied the growth rates to the
sample weights of the workers. This is because the Department cannot
introduce new observations to the CPS MORG data to represent the newly
employed.
In addition to the calculations described above, some assumptions
had to be made to use these data as the basis for the analysis. For
example, the Department eliminated workers who reported that their
weekly hours vary and provided no additional information on hours
worked. This was done because the Department cannot estimate impacts
for these workers since it is unknown whether they work overtime and
therefore unknown whether there would be any need to pay for overtime
if their status changed from exempt to nonexempt. The Department
reweighted the rest of the sample to account for this change (i.e., to
keep the same total employment estimates).\109\ This adjustment assumes
that the distribution of hours worked by workers whose hours do not
vary is representative of hours worked by workers whose hours do vary.
The Department believes that without more information this is an
appropriate assumption.\110\
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\109\ The Department also reweighted for workers reporting zero
earnings. The Department eliminated, without reweighting, workers
who reported usually working zero hours and working zero hours in
the past week.
\110\ This is justifiable because demographic and employment
characteristics are similar across these two populations (e.g., age,
gender, education, distribution across industries, share paid
nonhourly). The share of all workers who stated that their hours
vary (but provided no additional information) is 5.7 percent. To the
extent these excluded workers are exempt, if they tend to work more
overtime than other workers, then transfer payments, costs, and DWL
may be underestimated. Conversely, if they work fewer overtime
hours, then transfer payments, costs, and DWL may be overestimated.
---------------------------------------------------------------------------
iii. Number of Workers Covered by the Department's Part 541 Regulations
To estimate the number of workers covered by the FLSA and subject
to the Department's part 541 regulations, the Department excluded
workers who are not protected by the FLSA or are not subject to the
Department's regulations for a variety of reasons--for instance, they
may not be covered by, or considered to be employees under, the FLSA.
These workers include:
Military personnel,
unpaid volunteers,
self-employed individuals,
clergy and other religious workers, and
federal employees (with a few exceptions described below).
Many of these workers are excluded from the CPS MORG: Members of
the military on active duty, unpaid volunteers, and the self-employed.
Religious workers were excluded from the analysis after being
identified by their occupation codes: `clergy' (Census occupational
code 2040), `directors, religious activities and education' (2050), and
`religious workers, all other' (2060). Most employees of the federal
government are covered by the FLSA but are not subject to the
Department's part 541 regulations because their entitlement to minimum
wage and overtime pay is regulated by the Office of Personnel
Management (OPM).\111\ See 29 U.S.C. 204(f). Exceptions exist for U.S.
Postal Service employees, Tennessee Valley Authority employees, and
Library of Congress employees. See 29 U.S.C. 203(e)(2)(A). These
covered federal workers were identified and included in the analysis
using occupation and/or industry codes.\112\ Employees of firms that
have annual revenue of less than $500,000 and who are not engaged in
interstate commerce are also not covered by the FLSA. The Department
does not exclude them from the analysis because we have no reliable way
of estimating the size of this worker population, although the
Department believes it is a small percentage of workers. The 2004 Final
Rule analysis similarly did not adjust for these workers.
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\111\ Federal workers are identified in the CPS MORG with the
class of worker variable PEIO1COW.
\112\ Postal Service employees were identified with the Census
industry classification for postal service (6370). Tennessee Valley
Authority employees were identified as federal workers employed in
the electric power generation, transmission, and distribution
industry (570) and in Kentucky, Tennessee, Mississippi, Alabama,
Georgia, North Carolina, or Virginia. Library of Congress employees
were identified as federal workers under Census industry `libraries
and archives' (6770) and residing in Washington, DC.
---------------------------------------------------------------------------
Table 3 presents the Department's estimates of the total number of
workers, and the number of workers covered by the FLSA and subject to
the Department's part 541 regulations, in FY2005 and FY2017. The
Department projected that in FY2017 there will be 159.9 million wage
and salary workers in the United States. Of these, in the baseline
scenario without changes in the salary levels, 132.8 million would be
covered by the FLSA and subject to the Department's regulations (83.0
percent). The remaining 27.2 million workers would be excluded from
FLSA coverage for the reasons described above and delineated in Table
4.
[[Page 32456]]
Table 3--Estimated Number of Workers Covered by the FLSA and Subject to the Department's Part 541 Regulations,
FY2005 and FY2017
----------------------------------------------------------------------------------------------------------------
Subject to the Department's
Civilian regulations
Year employment -------------------------------
(1,000s) Number
(1,000s) Percent
----------------------------------------------------------------------------------------------------------------
FY2005 \a\...................................................... 141,519 122,043 86.2
FY2017.......................................................... 159,914 \b\ 132,754 83.0
----------------------------------------------------------------------------------------------------------------
\a\ The PRIA provided figures from calendar year 2005, which differ slightly from the fiscal year 2005 figures
provided in this analysis.
\b\ Estimate uses pooled data for FY2013-FY2015 projected to reflect FY2017.
Table 4--Reason Not Subject to the Department's Part 541 Regulations,
FY2017
------------------------------------------------------------------------
Number
Reason (1,000s)
------------------------------------------------------------------------
Total................................................... 27,160
Self-employed and unpaid workers \a\.................... 23,607
Religious workers....................................... 550
Federal employees \b\................................... 3,005
------------------------------------------------------------------------
Note: Estimates use pooled data for FY2013-FY2015 projected to reflect
FY2017.
\a\ Self-employed workers (both incorporated and unincorporated) and
workers ``without pay'' are excluded from the MORG supplement. We
assume workers ``without pay'' are ``unpaid volunteers.'' These
workers are identified as the difference between the population of
workers in the CPS basic data and the CPS MORG data.
\b\ Most employees of the federal government are covered by the FLSA but
are not covered by part 541. Exceptions are for U.S. Postal Service
employees, Tennessee Valley Authority employees, and Library of
Congress employees.
iv. Number of Workers in the Analysis
After limiting the analysis to workers covered by the FLSA and
subject to the Department's part 541 regulations, several other groups
of workers are identified and excluded from further analysis since they
are unlikely to be affected by this Final Rule. These include:
Blue collar workers,
workers paid hourly, and
workers who are exempt under certain other (non-EAP)
exemptions.
The Department excludes a total of 87.9 million workers from the
analysis for one or more of these reasons, which often overlapped
(e.g., many blue collar workers are also paid hourly). In FY2017, we
project there will be 48.1 million blue collar workers (Table 5). These
workers were identified in the CPS MORG data following the methodology
from the U.S. Government Accountability Office's (GAO) 1999 white
collar exemptions report \113\ and the Department's 2004 regulatory
impact analysis. See 69 FR 22240-44 (Table A-1). Supervisors in
traditionally blue collar industries are classified as white collar
workers because their duties are generally managerial or
administrative, and therefore they were not excluded as blue collar
workers. The Department used the CPS MORG variable PEERNHRY to
determine hourly status, and determined that 78.3 million workers will
be paid on an hourly basis in FY 2017.
---------------------------------------------------------------------------
\113\ GAO/HEHS. (1999). Fair Labor Standards Act: White Collar
Exemptions in the Modern Work Place. GAO/HEHS-99-164, 40-41.
---------------------------------------------------------------------------
Also excluded from further analysis were workers who are exempt
under certain other (non-EAP) exemptions. Although some of these
workers may also be exempt under the EAP exemptions, even if these
workers lost their EAP exempt status they would remain exempt from the
minimum wage and/or overtime pay provisions based on the non-EAP
exemption, and thus were excluded from the analysis. We excluded an
estimated 4.5 million workers, including some agricultural and
transportation workers, from further analysis because they will be
subject to another (non-EAP) overtime exemption. See Appendix A:
Methodology for Estimating Exemption Status, for details on how this
population was identified.
Table 5--Estimated Number of Workers Covered by the FLSA and Subject to the Department's Part 541 Regulations, FY2005 and FY2017 (1,000s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reason excluded \b\
Subject to Workers in Excluded -------------------------------------------------------------------
Year DOL's Part the from Another exemption \c\
541 Reg. analysis analysis Blue collar Hourly -----------------------------------------
\a\ workers workers Agriculture Transportation Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY2005....................................... 122,043 39,447 82,595 45,889 73,813 778 1,911 967
FY2017....................................... 132,754 44,845 87,909 48,119 78,310 902 1,912 1,691
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: FY2017 estimates use pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Wage and salary workers who are white collar, salaried, and not eligible for another (non-EAP) overtime exemption.
\b\ Numbers do not add to total due to overlap.
\c\ Eligible for another (non-EAP) overtime pay exemption.
In the 2004 Final Rule the Department excluded some of these
workers from the population of potentially affected EAP workers, but
not all of them. Agricultural and transportation workers are two of the
largest groups of workers excluded from this analysis, and they were
similarly excluded in 2004. Agricultural workers were identified by
occupational-industry combination.\114\ Transportation workers were
defined as those who are subject to the following
[[Page 32457]]
FLSA exemptions: Section 13(b)(1), section 13(b)(2), section 13(b)(3),
section 13(b)(6), or section 13(b)(10). This methodology is the same as
in the 2004 Final Rule and is explained in Appendix A. The Department
excluded 902,000 agricultural workers and 1.9 million transportation
workers from the analysis. In addition, the Department excluded another
1.7 million workers who fall within one or more of multiple FLSA
minimum wage and overtime exemptions and are detailed in Appendix A.
However, of these 1.7 million workers, all but 25,600 are either blue
collar or hourly and thus the impact of excluding these workers is
negligible.
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\114\ In the 2004 Final Rule all workers in agricultural
industries were excluded. 69 FR 22197. Here only workers also in
select occupations were excluded since not all workers in
agricultural industries qualify for the agricultural overtime pay
exemptions. See Appendix A. This method better approximates the true
number of exempt agricultural workers and provides a more
conservative--i.e., greater--estimate of the number of affected
workers.
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v. Number of Potentially Affected EAP Workers
After excluding workers not subject to the Department's FLSA
regulations and workers who are unlikely to be affected by this Final
Rule (i.e., blue collar workers, workers paid hourly, workers who are
subject to another (non-EAP) overtime exemption), the Department
estimated there would be 44.8 million salaried white collar workers for
whom employers might claim either the standard EAP exemption or the HCE
exemption. To be exempt under the standard EAP test the employee must:
Be paid a predetermined and fixed salary that is not
subject to reduction because of variations in the quality or quantity
of work performed (the salary basis test); 115, 116
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\115\ Hourly computer employees who earn at least $27.63 per
hour and perform certain duties are exempt under section 13(a)(17)
of the FLSA. These workers are considered part of the EAP exemptions
but were excluded from the analysis because they are paid hourly and
will not be affected by this Final Rule (these workers were
similarly excluded in the 2004 analysis). Salaried computer workers
are exempt if they meet the salary and duties tests applicable to
the EAP exemptions, and are included in the analysis since they will
be impacted by this Final Rule.
\116\ Additionally, administrative and professional employees
may be paid on a fee basis, as opposed to a salary basis, at a rate
of at least the amount specified by the Department in the
regulations. Payment on a ``fee basis'' occurs where an employee is
paid an agreed sum for a single job regardless of the time required
for its completion. Sec. 541.605(a). Salary level test compliance
for fee basis employees is assessed by determining whether the
hourly rate for work performed (i.e., the fee payment divided by the
number of hours worked) would total at least $455 per week if the
employee worked 40 hours. Sec. 541.605(b). However, the CPS MORG
does not identify workers paid on a fee basis (only hourly or
nonhourly). Thus in the analysis, workers paid on a fee basis are
considered with nonhourly workers and consequently classified as
``salaried'' (as was done in the 2004 Final Rule).
---------------------------------------------------------------------------
earn at least a designated salary amount; the salary level
has been set at $455 per week since 2004 (the salary level test); and
perform work activities that primarily involve executive,
administrative, or professional duties as defined by the regulations
(the duties test).
The 2004 Final Rule's HCE test requires the employee to pass the
same standard salary basis and salary level tests. However, the HCE
duties test is much less restrictive than the standard duties test, and
the employee must earn at least $100,000 in total annual compensation,
including at least $455 per week paid on a salary or fee basis, while
the balance may be paid as nondiscretionary bonuses and commissions.
Salary Basis
As discussed above, the Department included only nonhourly workers
in the analysis using the CPS variable PEERNHRY, which identifies
workers as either hourly or nonhourly. For the purpose of this
rulemaking, the Department considers data representing compensation
paid to nonhourly workers to be an appropriate proxy for compensation
paid to salaried workers. The Department notes that we made the same
assumption regarding nonhourly workers in the 2004 Final Rule. See 69
FR 22197. Several commenters asserted that the Department's use of the
CPS variable PEERNHRY to indicate whether a worker is salaried is
inappropriate. For example, the NRF included an analysis it
commissioned from Oxford Economics, which stated that this variable is
inappropriate because all workers who earn under $455 a week (and are
therefore nonexempt) will report that they are ``paid at an hourly
rate.'' The Department believes this is an entirely unwarranted
assumption: exempt status is not a prerequisite for being salaried;
salaried status is a prerequisite for being exempt (the salary basis
test). Millions of workers--white and blue collar alike--are salaried
despite being nonexempt, including 3.2 million white-collar workers who
reported earning less than $455 per week in the CPS. See 80 FR 38522
(noting the ``widespread misconception[ ]'' that ``payment of a salary
automatically disqualifies an employee from entitlement to overtime
compensation.'')
Some commenters, such as the Chamber and the National Association
of Convenience Stores (NACS), expressed concern that the Department is
using ``nonhourly'' workers to approximate ``salaried'' workers, even
though this may include workers who are paid on a piece-rate, a day-
rate, or largely on bonuses or commissions. The Panel Study of Income
Dynamics (PSID) provides additional information on how nonhourly
workers are paid. In the PSID, respondents are asked how they are paid
on their main job and are asked for more detail if their response is
other than salaried or hourly. Possible responses include piecework,
commission, self-employed/farmer/profits, and by the job/day/mile. The
Department analyzed the PSID data and found that relatively few
nonhourly workers were paid by methods other than salaried. The
Department is not aware of any statistically robust source that more
closely reflects salary as defined in our regulations, and the
commenters did not identify any such source.
Salary Level
Weekly earnings are available in the CPS MORG data, which allowed
the Department to estimate how many nonhourly workers pass the salary
level tests.\117\ The Fisher & Phillips law firm, Jackson Lewis law
firm, NACS, and the Clearing House Association (Clearing House)
commented that CPS earnings data may be inappropriate because the data
includes overtime pay, commissions, or tips. The Department notes that
employers may factor into an employee's salary a premium for expected
overtime hours worked. To the extent they do so, that premium would be
reflected in the data. Similarly, the Department believes tips will be
an uncommon form of payment for these workers since tips are uncommon
for white-collar workers. Lastly, the Department believes that
commissions make up a relatively small share of earnings among
nonhourly employees.\118\ In any event, as discussed earlier in section
IV.C., the Department has adopted a change to the salary basis test in
this Final Rule that will newly
[[Page 32458]]
allow employers to satisfy as much as 10 percent of the standard salary
level requirement for employees who meet the standard duties test
through the payment of nondiscretionary bonuses, incentive payments,
and commissions.
---------------------------------------------------------------------------
\117\ The CPS MORG variable PRERNWA, which measures weekly
earnings, is used to identify weekly salary. The CPS variable
includes all nondiscretionary bonuses and commissions, which do not
count toward the standard salary level under the current regulations
but may be used to satisfy up to 10 percent of the new standard
salary level when this Final Rule takes effect. This discrepancy
between the earnings variable used and the FLSA definition of salary
may cause a slight overestimate of the number of workers estimated
to meet the standard test. Additionally, because the variable
includes earnings across all jobs, this could bias upward workers'
earnings on a given job. However, the Department believes this bias
is small because only 4.2 percent of salaried, white collar workers
hold multiple jobs.
\118\ In the PSID, relatively few nonhourly workers were paid by
commission. Additionally, according to the BLS Employment Cost Index
(ECI), about 5 percent of the private workforce is incentive-paid
workers (incentive pay is defined as payment that relates earnings
to actual individual or group production). See: http://www.bls.gov/opub/mlr/cwc/the-effect-of-incentive-pay-on-rates-of-change-in-wages-and-salaries.pdf.
---------------------------------------------------------------------------
NACS also asserted that the CPS MORG earnings data are unreliable
because they ``are self-reported and are therefore not subject to
verification.'' The Department acknowledges that the CPS, like all
surveys, involves some measurement error. However, based on the
literature measuring error in CPS earnings data, the Department
believes that measurement error should not significantly bias its
results.\119\
---------------------------------------------------------------------------
\119\ For example, researchers have found that worker and
employer reported earnings correlate 0.90 percent or higher. Bound,
J., Brown, C., Mathiowetz, N. Measurement error in survey data. In
Handbook of Econometrics; Heckman, J.J., Leamer, E.E., Eds.; North-
Holland: Amsterdam, The Netherlands, V, 3705-3843.
---------------------------------------------------------------------------
Duties
The CPS MORG data do not capture information about job duties, and
at the time of writing the NPRM, there were no data available on the
prevalence of EAP exempt workers. Due to this data limitation, the
Department used occupational titles, combined with probability
estimates of passing the duties test by occupational title, to estimate
the number of workers passing the duties test. This methodology is very
similar to the methodology used in the 2004 rulemaking, and was the
best available data and methodology. To determine whether a worker met
the duties test, the Department used an analysis performed by WHD in
1998 in response to a request from the GAO. Because WHD enforces the
FLSA's overtime requirements and regularly assesses workers' exempt
status, WHD's representatives were uniquely qualified to provide the
analysis. The analysis was used in both the GAO's 1999 white collar
exemptions report \120\ and the Department's 2004 regulatory impact
analysis. See 69 FR 22198.
---------------------------------------------------------------------------
\120\ GAO/HEHS. (1999). Fair Labor Standards Act: White Collar
Exemptions in the Modern Work Place. GAO/HEHS-99-164, 40-41.
---------------------------------------------------------------------------
WHD's representatives examined 499 occupational codes, excluding
nine that were not relevant to the analysis for various reasons (one
code was assigned to unemployed persons whose last job was in the Armed
Forces, some codes were assigned to workers who are not FLSA covered,
others had no observations). Of the remaining occupational codes, WHD's
representatives determined that 251 occupational codes likely included
EAP exempt workers and assigned one of four probability codes
reflecting the estimated likelihood, expressed as ranges, that a worker
in a specific occupation would perform duties required to meet the EAP
duties tests. The Department supplemented this analysis in the 2004
Final Rule regulatory impact analysis when the HCE exemption was
introduced. The Department modified the four probability codes for
highly paid workers based upon our analysis of the provisions of the
highly compensated test relative to the standard duties test (Table 6).
To illustrate, WHD representatives assigned exempt probability code 4
to the occupation ``first-line supervisors/managers of construction
trades and extraction workers'' (Census code 6200), which indicates
that a worker in this occupation has a 0 and 10 percent likelihood of
meeting the standard EAP duties test. However, if that worker earns at
least $100,000 annually, he or she has a 15 percent probability of
passing the shorter HCE duties test.
The occupations identified in GAO's 1999 report and used by the
Department in the 2004 Final Rule map to an earlier occupational
classification scheme (the 1990 Census occupational codes). Therefore,
for this Final Rule, the Department used an occupational crosswalk to
map the previous occupational codes to the 2002 Census occupational
codes which are used in the CPS MORG 2002 through 2010 data, and to the
2010 Census occupational codes which are used in the CPS MORG FY2013
through FY2015 data.\121\ If a new occupation comprises more than one
previous occupation, then the new occupation's probability code is the
weighted average of the previous occupations' probability codes,
rounded to the closest probability code.
---------------------------------------------------------------------------
\121\ References to occupational codes in this analysis refer to
the 2002 Census occupational codes. Crosswalks and methodology
available at: http://www.census.gov/people/io/methodology/.
Table 6--Probability Worker in Category Passes the Duties Test
----------------------------------------------------------------------------------------------------------------
The Standard EAP test The HCE test
---------------------------------------------------------------
Probability code Lower bound Upper bound Lower bound Upper bound
(%) (%) (%) (%)
----------------------------------------------------------------------------------------------------------------
0............................................... 0 0 0 0
1............................................... 90 100 100 100
2............................................... 50 90 94 96
3............................................... 10 50 58.4 60
4............................................... 0 10 15 15
----------------------------------------------------------------------------------------------------------------
These codes provide information on the likelihood an employee in a
category met the duties test but they do not identify the workers in
the CPS MORG who actually passed the test. Therefore, the Department
designated workers as exempt or nonexempt based on the probabilities.
For example, for every ten public relations managers, between five and
nine were estimated to pass the standard duties test (based on
probability category 2). However, it is unknown which of these ten
workers are exempt; therefore, the Department must determine the status
for these workers. Exemption status could be randomly assigned with
equal probability, but this would ignore the earnings of the worker as
a factor in determining the probability of exemption. The probability
of qualifying for the exemption increases with earnings because higher
paid workers are more likely to perform the required duties, an
assumption adhered to by both the Department in the 2004 Final Rule and
the GAO in its 1999 Report.\122\ The Department estimated the
probability of exemption for each worker as a function of both earnings
[[Page 32459]]
and the occupation's exempt probability category using a gamma
distribution.\123\ Based on these revised probabilities, each worker
was assigned exempt or nonexempt status based on a random draw from a
binomial distribution using the worker's revised probability as the
probability of success. Thus, if this method is applied to ten workers
who each have a 60 percent probability of being exempt, six workers
would be expected to be designated as exempt.\124\ However, which
particular workers are designated as exempt may vary with each set of
ten random draws. For details see Appendix A.
---------------------------------------------------------------------------
\122\ For the standard exemption, the relationship between
earnings and exemption status is not linear and is better
represented with a gamma distribution. For the HCE exemption, the
relationship between earnings and exemption can be well represented
with a linear function because the relationship is linear at high
salary levels (as determined by the Department in the 2004 Final
Rule). Therefore, the gamma model and the linear model would produce
similar results. See 69 FR 22204-08, 22215-16.
\123\ The gamma distribution was chosen because, during the 2004
revision, this non-linear distribution best fit the data compared to
the other non-linear distributions considered (i.e., normal and
lognormal). A gamma distribution is a general type of statistical
distribution that is based on two parameters that control the scale
(alpha) and shape (in this context, called the rate parameter,
beta).
\124\ A binominal distribution is frequently used for a
dichotomous variable where there are two possible outcomes; for
example, whether one owns a home (outcome of 1) or does not own a
home (outcome of 0). Taking a random draw from a binomial
distribution results in either a zero or a one based on a
probability of ``success'' (outcome of 1). This methodology assigns
exempt status to the appropriate share of workers without biasing
the results with manual assignment.
---------------------------------------------------------------------------
The Chamber attached to its comment an Oxford Economic analysis
commissioned by the NRF, which also submitted the analysis, asserting
that that CPS data may not be appropriate to determine how many workers
are EAP exempt, and specifically how many pass the duties test. The
Oxford Economics analysis contends that occupational titles in the CPS
are less accurate than the OES survey, a BLS-published data set based
on employer surveys, because the occupational titles in the CPS are
self-reported, while occupational titles in the OES survey are reported
by firms, and are therefore better suited to obtain information on
actual occupations. Oxford Economics asserts in their Appendix A that
there is title-inflation in the CPS data, which would imply that the
Department's number of affected workers was overestimated. Similarly,
the Chamber described the CPS job title information as based on
``brief, limited individual verbal responses.''
The Department acknowledges that an establishment survey (like the
OES) may more accurately reflect the occupational titles applied to
workers by individual employers; however, we note that businesses, like
workers, may also have an incentive to inflate or deflate occupational
titles. In addition, Oxford Economics and the Chamber overstate the
presumed weaknesses of the CPS occupation classification. When the CPS
reports occupation codes, occupation is generally determined from the
initial, in-person, in-depth interview with the respondent, and the
interviewer is directed to determine the respondent's duties and
responsibilities, not merely accept the occupational title at face
value; Census coders then assign the occupation code based on the
interview.
Moreover, there are important shortcomings of the OES, which made
it an inappropriate data source for the Department's purposes. First,
the OES data do not include individual level data. For example,
earnings are not disaggregated by respondent; only select decile
estimates are presented. This does not allow estimation of the number
of workers earning at least $455.\125\ Second, the OES does not provide
information on hours worked. In order to estimate costs and transfers
using OES data, Oxford Economics had to apply estimates of hours worked
from the CPS data to the OES data. This requires mapping CPS
occupational titles to OES occupational titles, and therefore does not
avoid use of the titles Oxford Economics finds inadequate. The
Department believes the direct information on earnings and hours worked
from CPS is more germane to the analysis than some potential inaccuracy
in occupational titles, and will result in a more accurate analysis
than trying to map worker characteristics such as data on hours worked
by earnings from CPS to the OES. Finally, even if there are slight
discrepancies in occupational titles, a review of the occupational
titles in Appendix A of this RIA will show that closely related
occupational titles are generally assigned the same probability of
exemption (for example, different types of engineers are all classified
as probability code 1; and cashiers and counter and rental clerks are
both classified as probability code 4).
---------------------------------------------------------------------------
\125\ Oxford Economics made assumptions to estimate the number
of workers earning at least $455 per week. The firm chose to include
or exclude all workers in an occupation based on whether ``the
threshold wage was below the 10th percentile or above the 90th
percentile respectively.'' See Appendix A: Detailed Methodology
Description, at 32, available at https://nrf.com/sites/default/files/Documents/retail%20library/Rethinking-Overtime-Appendices.pdf.
---------------------------------------------------------------------------
The Chamber expressed concern that the probability codes used to
determine the share of workers in an occupation who are EAP exempt are
17 years old and therefore out of date. Similarly, the Economic Policy
Institute (EPI) commented that we underestimated the number of exempt
workers for this reason. The Department acknowledges these codes were
developed in 1998 for use by the GAO in its study of the part 541
exemptions, but we believe the probability codes continue to accurately
estimate exemption status given the fact that the standard duties test
is not substantively different from the former short duties tests
reflected in the codes.\126\ The Department looked at O*NET \127\ to
determine the extent to which the 1998 probability codes reflected
occupational duties today. The Department's review of O*NET verified
the continued appropriateness of the 1998 probability codes.
---------------------------------------------------------------------------
\126\ The Chamber additionally expressed concern about the use
of proxy respondents in the CPS. To check whether proxy respondents
may cause biased results, the Department excluded proxy responses
from the data and found that the share of potentially affected
workers who are affected by the rulemaking remains very similar (it
drops from 18.8 percent (see section VI.D.ii.) to 18.1 percent).
\127\ The O*NET database contains hundreds of standardized and
occupation-specific descriptions. See www.onetcenter.org.
---------------------------------------------------------------------------
The Partnership to Protect Workplace Opportunity (PPWO) cited an
Edgeworth Economics article asserting that the probability codes are
inappropriate because there is evidence that the relationship between
salaries and job duties assumed by the Department is not valid. The
article provides the following example: ``the median pay of
`Occupational Therapists' is more than twice as high as the median pay
of `First Line Supervisors/Managers of Retail Sales Workers,' yet the
DOL places `Occupational Therapists' in the 10 to 50 percent category
for managerial and professional duties, while 50 to 90 percent of the
positions in `First Line Supervisors/Managers of Retail Sales Workers'
were determined to include managerial and professional duties.''
However, this criticism is not valid since the positive relationship
between salary levels and passing the duties test was assumed within
probability code categories, not between probability code categories.
The probability codes only reflect the likelihood within an occupation
of passing the duties test, not the probability of being exempt.
Potentially Affected Exempt EAP Workers
The Department estimated that of the 44.8 million salaried white
collar workers considered in the analysis, 29.9 million qualified for
the EAP exemptions under the current regulations (Table 7). However,
some of these workers were excluded from further analysis because they
would not be affected by the Final Rule. This excluded group contains
workers in named occupations who are not required to pass the salary
requirements
[[Page 32460]]
(although they must still pass a duties test) and therefore whose
exemption status is not dependent on their earnings. These occupations
include physicians (identified with Census occupation codes 3010, 3040,
3060, 3120), lawyers (2100), teachers (occupations 2200-2550 and
industries 7860 or 7870), academic administrative personnel (school
counselors (occupation 2000 and industries 7860 or 7870) and
educational administrators (occupation 0230 and industries 7860 or
7870)), and outside sales workers (a subset of occupation 4950).\128\
Out of the 29.9 million workers who are EAP exempt, 7.4 million, or
24.8 percent, are expected to be in named occupations in FY2017. Thus
these workers will be unaffected by changes in the standard salary
level and HCE compensation tests. The 22.5 million EAP exempt workers
remaining in the analysis are referred to in this Final Rule as
``potentially affected.'' In addition to the 22.5 million potentially
affected EAP exempt workers, the Department estimates that an
additional 5.7 million salaried white collar workers who do not satisfy
the duties test and who currently earn at least $455 per week but less
than the updated salary level, will have their overtime protection
strengthened because their exemption status will be clear based on the
salary test alone without the need to examine their duties.
---------------------------------------------------------------------------
\128\ Some commenters asserted it is inappropriate to exclude
these named occupations from the impact analysis, but not from the
data set used to derive the salary level. These workers were
included in the earnings distribution used to set the salary level
because it achieves a sample that is more representative of EAP
salary levels throughout the economy (see section IV.A.iv.).
Table 7--Estimated Percentages of EAP Exempt Workers in Named Occupations, Prior to Rulemaking, FY2005 and
FY2017
----------------------------------------------------------------------------------------------------------------
EAP Exempt in % of EAP
Workers in EAP Exempt named exempt in
Year the analysis (millions) occupations named
(millions) \a\ (millions) \b\ occupations
----------------------------------------------------------------------------------------------------------------
FY2005.......................................... 39.4 24.9 6.4 25.9
FY2017.......................................... 44.8 29.9 7.4 24.8
----------------------------------------------------------------------------------------------------------------
Note: FY2017 estimates use pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Wage and salary workers who are white collar, salaried, and not eligible for another (non-EAP) overtime
exemption.
\b\ Workers not subject to a salary level test include teachers, academic administrative personnel, physicians,
lawyers, judges, and outside sales workers.
In response to the NPRM, the FL DEO conducted their own analysis of
the number of Florida workers potentially affected by the proposed rule
and asserted that the Department's analysis in the NPRM overestimates
``by 195,000 the number of Florida workers who will qualify for
overtime.'' The Department's NPRM estimated that 370,000 workers would
be affected in Florida whereas the FL DEO estimated 175,100.\129\
However, FL DEO did not provide details explaining how they arrived at
their lower number so the Department has no way to judge the validity
of their analysis or to update our own analysis to incorporate any
methodological improvements that may exist in the FL DEO study.
---------------------------------------------------------------------------
\129\ State level data was not included in the NPRM analysis,
but was posted at the time of the NPRM publication and is available
at: https://www.whitehouse.gov/sites/default/files/docs/ot_state_by_state_fact_sheet.pdf.
---------------------------------------------------------------------------
There are three groups of workers who qualify for the EAP
exemptions: (1) Those passing only the standard EAP test (i.e., passing
the standard duties test, the salary basis test, and the standard
salary level test but not passing the HCE total annual compensation
requirement); (2) those passing only the HCE test (i.e., passing the
HCE duties test, the salary basis test, and the HCE total annual
compensation requirement but not passing the standard duties test); and
(3) those passing all requirements of both the standard and HCE tests.
Based on analysis of the occupational codes and CPS earnings data, the
Department has concluded that in FY2017, in the baseline scenario where
the rule does not change, of the 22.5 million potentially affected EAP
workers, approximately 15.4 million will pass only the standard EAP
test, 7.0 million will pass both the standard and the HCE tests, and
approximately 100,000 will pass only the HCE test (Table 8). When
impacts are discussed in section VI.D., workers who pass both tests
will be considered with those who pass only the standard EAP test
because the standard salary level test is lower (i.e., the worker may
continue to pass the standard salary level test even if he or she no
longer passes the HCE total annual compensation requirement).
Table 8--Estimated Number of Workers Exempt Under the EAP Exemptions by Test Type, Prior to Rulemaking, FY2005
and FY2017
----------------------------------------------------------------------------------------------------------------
Potentially affected EAP workers (millions)
---------------------------------------------------------------
Year Pass standard Pass both Pass HCE test
Total test only tests only
----------------------------------------------------------------------------------------------------------------
FY2005.......................................... 18.4 15.8 2.6 0.04
FY2017.......................................... 22.5 15.4 7.0 0.10
----------------------------------------------------------------------------------------------------------------
Note: FY2017 estimates use pooled data for FY2013-FY2015 projected to reflect FY2017.
[[Page 32461]]
C. Determining the Revised Salary and Compensation Levels
The Final Rule sets the EAP standard salary level at the 40th
percentile of the weekly earnings distribution of full-time salaried
workers in the lowest-wage Census Region (currently the South) and sets
the HCE total annual compensation requirement equal to the annual
earnings equivalent of the 90th percentile of the weekly earnings
distribution of full-time salaried workers nationally.\130\ These
methods were chosen in part because they generate salary levels that
(1) appropriately distinguish between workers who are eligible for
overtime and those who may be EAP exempt; (2) are easy to calculate and
thus easy to replicate, creating transparency through simplicity; and
(3) are predictable. The Department believes that the standard salary
level set using the methodology established in this rulemaking allows
for reliance on the current standard duties test without necessitating
a return to the more detailed long duties test. Additionally, the
Department believes this salary level will not result in an
unacceptably high risk that employees performing bona fide EAP duties
will become entitled to overtime protection by virtue of the salary
test.
---------------------------------------------------------------------------
\130\ On a quarterly basis, BLS publishes a table of deciles of
the weekly wages of full-time nonhourly workers, calculated using
CPS data, which employers can use to help anticipate the likely
amount of automatically updated salary levels. See http://www.bls.gov/cps/research_series_earnings_nonhourly_workers.htm.
---------------------------------------------------------------------------
In the NPRM, the Department proposed setting the EAP standard
salary level at the 40th percentile of the weekly earnings distribution
of full-time salaried workers nationally. In response to commenters'
concerns that the proposed salary level would disqualify too many bona
fide EAP employees in low-wage areas and industries, the Department
limited the distribution to workers in the lowest-wage Census Region.
i. Methodology for the Standard Salary Level and Comparison to Past
Methodologies
The Department in this rulemaking is setting the standard salary
level at the 40th percentile of weekly earnings of full-time salaried
workers in the lowest-wage Census Region (currently the South). This
methodology differs somewhat from previous revisions to the salary
levels but the general concept holds: Define a relevant population of
workers, estimate an earnings distribution for that population, then
set a salary level that corresponds to a designated percentile of that
distribution in order for the salary to serve as a meaningful line of
demarcation between those Congress intended to protect and those who
may qualify for exemption. The salary setting methodology adopted in
this Final Rule continues the evolution of the Department's approach.
Where the methodology differs from past methodologies, the Department
believes the changes are an improvement. A comparison of this new
method with methods from past rulemakings, and the reasons for
selecting the new method are detailed in the rest of this section.
As discussed in section IV.A., the historical methodologies used to
revise the EAP salary levels have varied somewhat across the seven
updates to the salary level test since it was implemented in 1938. To
guide the determination of the salary level, the Department considered
methodologies used previously to revise the EAP salary levels. In
particular, the Department focused on the 1958 revisions and the most
recent revisions in 2004. The 1958 methodology is particularly
instructive in that it synthesized previous approaches to setting the
long-test salary level, and the basic structures it adopted have been a
touchstone to setting the long test salary level in subsequent
rulemakings (with the exception of 1975).
In 1958, the Department updated the salary levels based on a 1958
Report and Recommendations on Proposed Revision of Regulations, Part
541, by Harry S. Kantor (Kantor Report). To determine the revised
salary levels the Department looked at data collected during WHD
investigations on actual salaries paid to exempt EAP employees, grouped
by geographic region, industry groups, number of employees, and size of
city. The Department then set the long test salary levels so that no
more than about 10 percent of exempt EAP employees in the lowest-wage
region, lowest-wage industry, smallest establishment group, or smallest
city group would fail to meet the test. Kantor Report at 6-
7.131 132 The Department then set the short test salary
level in relation to, and significantly higher than, the long test
salary levels. This methodology is referred to as the Kantor method,
and the Department followed a similar methodology in setting the salary
levels in 1963 and 1970.
---------------------------------------------------------------------------
\131\ The Kantor long test method was based on an analysis of a
survey of exempt workers as determined by investigations conducted
by WHD. Subsequent analyses, including both the 2004 rulemaking and
this Final Rule, have estimated exempt status using multiple data
sources.
\132\ Because the salary level test is likely to have the
largest impact on the low-wage segments of the economy (e.g., low-
wage regions and industries), salaries in those segments were
selected as the basis for the required salary level under the Kantor
long test method.
---------------------------------------------------------------------------
A significant change in 2004 from the long test Kantor method was
that the Department used the salaries of both exempt and nonexempt
full-time salaried workers in the South and the retail industry to
determine the required salary level (hereafter referred to as the 2004
method), rather than the salaries of exempt workers only. However,
because the salaries of exempt workers on average are higher than the
salaries of all full-time salaried workers, the Department selected a
higher earnings percentile when setting the required salary. Based on
the Department's 2004 analysis, the 20th percentile of earnings for
exempt and nonexempt full-time salaried workers in the South and retail
achieved a result very similar to the 10th percentile for workers in
the lowest-wage regions and industries who were estimated to be exempt.
See 69 FR 22169.
In the current rulemaking, the Department replicated the Kantor
long test method and the 2004 method to evaluate and compare them to
the chosen salary level.\133\ Although the Department was able to
replicate the 1958 and 2004 methods reasonably well, we could not
completely replicate those methods due to changes in data availability,
occupation classification systems, and incomplete documentation. In
general, there are four steps in the process:
---------------------------------------------------------------------------
\133\ The Department followed the same methodology used in the
2004 Final Rule for estimating the Kantor long test method with
minor adjustments. In an attempt to more accurately estimate the
Kantor long test method, for example, this analysis included non-
MSAs as a low-wage sector as Kantor did but the 2004 revisions did
not.
---------------------------------------------------------------------------
1. Identify workers likely to be members of the population of
interest.
2. Further narrow the population of interest by distinguishing the
sub-population employed in low-wage categories.
3. Estimate the distribution of earnings for these workers.
4. Identify the salary level that is equal to a pre-determined
percentile of the distribution.
The population of workers considered for purposes of setting the
salary level depends on whether the 2004 method or the Kantor long test
method is used. In replicating both methods, the Department limited the
population to workers subject to the FLSA and covered by the
Department's part 541 provisions, and excluded exempt EAP workers in
named occupations, and those exempt under another (non-EAP) exemption.
For the 2004 method, the
[[Page 32462]]
Department further limited the population to full-time salaried
workers, and for the Kantor long test method further limited the
population of interest by only including those workers determined as
likely to be EAP exempt (see more detailed methodology in section VI.C.
and Appendix A).
In the 2004 Final Rule, the Department identified two low-wage
categories: The South (low-wage geographic region), and the retail
industry (low-wage industry). In the current rulemaking, the Department
identified low-wage categories by comparing average weekly earnings
across categories for the populations of workers used in the Kantor
long test method and the 2004 method. The South was determined to be
the lowest-wage Census Region and was used for the 2004 method;
however, the Department chose to use a more detailed geographical
break-down for the Kantor long test method to reflect the geographic
categories Kantor used. Therefore, for the Kantor long test method the
East South Central Census Division is considered the lowest-wage
geographical area.\134\ The Department used three low-wage industries:
Leisure and hospitality, other services, and public
administration.\135\ The Department also considered non-MSAs as a low-
wage sector in the Kantor long test method. The 2004 revision did not
consider population density but the Kantor long test method examined
earnings across population size groups. In conclusion, for this
analysis the 2004 method looks at workers in the South and the three
low-wage industries, whereas the Kantor long test method looks at
workers in the East South Central Division, non-MSAs, and the three
low-wage industries.
---------------------------------------------------------------------------
\134\ The East South Central Division is a subset of the South
and includes Alabama, Kentucky, Mississippi, and Tennessee. If the
South is used instead, the resulting salary levels would increase
slightly.
\135\ In the NPRM, the Department found that the industry with
the lowest mean weekly earnings depends on whether the Kantor long
test method or the 2004 method's population was used. Therefore,
three industries were considered low-wage. For the Final Rule, the
``other services'' industry was consistently the lowest-wage
industry. However, the Department continues to use all three low-
wage industries for consistency and because these three continue to
be the three lowest-wage industries.
---------------------------------------------------------------------------
Next, the Department estimated the distributions of weekly earnings
of two populations: (1) Workers who are in at least one of the low-wage
categories and in the Kantor population (likely exempt workers), and
(2) workers who are in at least one of the low-wage categories and in
the 2004 population (full-time salaried workers). From these
distributions, alternate salary levels were identified based on pre-
determined percentiles. For the Kantor long test method, the salary
level for the long duties test is identified based on the 10th
percentile of weekly earnings for likely EAP exempt workers, while the
2004 method salary level is identified based on the 20th percentile of
weekly earnings for both exempt and nonexempt salaried workers. Using
2015 quarter 3 CPS MORG data, the Kantor long test method resulted in a
salary level of $684 per week, and the 2004 method resulted in a salary
level of $596 per week.\136\ Table 9 presents the distributions of
weekly earnings used to estimate the salary levels under the method
used in this Final Rule, the NPRM method, the 2004 method, and the
Kantor long test method.
---------------------------------------------------------------------------
\136\ Quarter 3 was used instead of quarter 4, which was used
for the distribution of all full-time salaried workers, because at
the time the analysis was conducted this was the most recently
available data.
Table 9--Weekly Earnings Distributions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Weekly earnings Annual earnings a
---------------------------------------------------------------------------------------------------------------------
Full-time salaried 2015Q4 Full-time salaried 2015Q4 b
Percentile b 2004 Method Kantor Long ------------------------------ 2004 Method Kantor Long
---------------------------- 2015Q3 \c\ Test Method 2015Q3 \c\ Test Method
South Nationally 2015Q3 d South Nationally 2015Q3 d
--------------------------------------------------------------------------------------------------------------------------------------------------------
10................................ $479 $509 $429 $684 $24,908 $26,468 $22,319 $35,560
20................................ 633 692 596 817 32,916 35,984 31,015 42,491
30................................ 768 838 726 949 39,936 43,576 37,749 49,332
40................................ 913 972 844 1,110 47,476 50,544 43,878 57,739
50................................ 1,054 1,146 988 1,259 54,808 59,592 51,381 65,451
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Weekly earnings multiplied by 52.
\b\ BLS. Available at: http://www.bls.gov/cps/research_series_earnings_nonhourly_workers.htm.
\c\ Full-time salaried workers in the South or employed in a low-wage industry (excludes workers not subject to the FLSA, not subject to the salary
level test, and in agriculture or transportation). Quarter 3 was used instead of Q4 because at the time of the analysis this was the most recently
available data.
\d\ Salaried, white collar workers who earn at least $455 per week, pass the EAP duties test, and either live in the East South Central Division or a
non-MSA or are employed in a low-wage industry (excludes workers not subject to FLSA, not subject to the salary level test, and in agriculture or
transportation). Quarter 3 was used instead of Q4 because at the time of the analysis this was the most recently available data.
In response to the NPRM, the Iowa Association of Business and
Industry (IABI) commented that the Department incorrectly replicated
the Kantor long test methodology. Kantor determined the salary levels
by looking separately at low-wage regions, less populated geographic
regions, and low-wage industries and then identifying a single salary
level that fits within these salary numbers. IABI asserted that we
misapplied the methodology by aggregating these low-wage sectors into a
single group. The Department disagrees with IABI that we misapplied the
Kantor long-test methodology. As discussed at length in the NPRM, the
Department replicated the Kantor methodology as closely as possible
given changes in data availability. See 80 FR 38557.
ii. Rationale for the Methodology Chosen
The chosen methodology--the 40th percentile of full-time salaried
workers in the lowest-wage Census Region--was selected because it (1)
corrects for the elimination of the long duties test and allows for
reliance on the current standard duties test; (2) appropriately
distinguishes between workers who are eligible for overtime and those
who may be EAP exempt in all regions and industries; (3) is easy to
calculate and thus easy to replicate, creating transparency through
simplicity; and (4) produces predictable salary levels.
The salary level test has historically been intended to serve as an
initial bright-line test for overtime eligibility for white collar
employees. As
[[Page 32463]]
discussed previously, however, there will always be white collar
overtime-eligible employees who are paid above the salary threshold. A
low salary level increases the number of these employees. The necessity
of applying the duties test to these overtime-protected employees
consumes employer resources, may result in misclassification (which
imposes additional costs to employers and society in the form of
litigation), and is an indicator of the effectiveness of the salary
level. Similarly, there will always be employees performing bona fide
EAP duties who are paid below the salary threshold; the inability of
employers to claim the EAP exemption for these employees is also an
indicator of the effectiveness of the salary level. Selecting the
standard salary level will inevitably affect the number of workers
falling into each of these two categories.
1. Correcting for the Elimination of the Long Duties Test
The Kantor long test method sought to minimize the number of white
collar employees who pass the long duties test but were excluded from
the exemption by the salary threshold and therefore set the salary
level at the bottom 10 percent of earnings of exempt EAP employees in
low-wage regions and industries so as to prevent ``disqualifying any
substantial number of such employees.'' Kantor Report at 5. This method
was based on the long/short test structure, in which employees paid at
lower salary levels were protected by significantly more rigorous
duties requirements than are part of the current standard duties test.
This approach, however, does not sufficiently take into account the
inefficiencies of applying the duties test to large numbers of
overtime-eligible white collar employees and the possibility of
misclassification of those employees as exempt.
As discussed in section IV.A., for many decades the long duties
test--which limited the amount of time an exempt employee could spend
on nonexempt duties and was paired with a lower salary level--existed
in tandem with a short duties test--which did not contain a specific
limit on the amount of nonexempt work and was paired with a
significantly higher salary level. In 2004, the Department eliminated
the long and short duties tests and created the new standard duties
test, based on the short duties test. The creation of a single standard
test that did not limit nonexempt work caused new uncertainty as to
what salary level is sufficient to ensure that employees intended to be
overtime-protected are not subject to inappropriate classification as
exempt, while minimizing the number of employees disqualified from the
exemption even though their primary duty is EAP exempt work.
In the Final Rule, the Department corrects for the elimination of
the long duties test and sets a salary level that works in tandem with
the standard duties test to appropriately classify white collar workers
as entitled to minimum wage and overtime protection or potentially
exempt. Thus, while the standard salary level set by the Department is
higher than the level the Kantor long test or 2004 methods would
generate, it is set at the low end of the range of the historical short
test levels, based on the ratios between the short test and long test
levels, and much lower than the historical average for the short test.
Between 1949 and 2003, the ratio of the short to long salary tests
ranged from approximately 130 percent to 180 percent. The low end of
this range would result in a salary level of $889; the high end would
result in a salary of $1,231 (measured in FY2015 dollars). The short
salary level updates between 1949 and 2003 averaged $1,100 per week
(measured in FY2015 dollars).\137\ At the 40th percentile of weekly
earnings of full-time workers in the South, 9.9 million white collar
employees would no longer be subject to the standard duties test (4.2
million currently EAP exempt employees who would be newly entitled to
overtime protection due to the increase in the salary threshold and 5.7
million overtime eligible white collar employees who are paid between
$455 and $913 per week whose exemption status would no longer depend on
the application of the duties test). As discussed in section IV.A.iv.,
the Department believes that many of the workers who will no longer be
exempt are currently inappropriately classified because of the mismatch
between the standard duties test and the standard salary level. The
final salary threshold will therefore more efficiently distinguish
between employees who may meet the duties requirement of the EAP
exemption and those who do not, without necessitating a return to the
more detailed long duties test.
---------------------------------------------------------------------------
\137\ This is the average of the values of the short test salary
level inflated to 2015 dollars.
---------------------------------------------------------------------------
2. Appropriately Distinguishing Overtime-Eligible White Collar Workers
and Those Who May Be EAP Exempt
The revised salary level also reduces the likelihood of workers
being misclassified as exempt from overtime pay, providing an
additional measure of the effectiveness of the salary level as a
bright-line test delineating exempt and nonexempt workers. In the NPRM,
the Department estimated that 13.5 percent of overtime-eligible white
collar workers earning between the current salary level and the
proposed salary level were misclassified. 80 FR 38559.
The Department updated our estimate of potential misclassification
based on the salary level set in this Final Rule. The Department's
analysis of misclassification draws on CPS data and looked at workers
who are white collar, salaried, subject to the FLSA and covered by part
541 regulations, earn at least $455 but less than $913 per week, and
fail the duties test. Because only workers who work overtime may
receive overtime pay, when determining the share of workers who are
misclassified the sample was limited to those who usually work
overtime.\138\ Workers were considered misclassified if they did not
receive overtime pay.\139\ The Department estimates that 12.8 percent
of workers in this analysis who usually work overtime do not receive
overtime compensation and are therefore misclassified as exempt.
Applying this estimate to the sample of white collar salaried workers
who fail the duties test and earn at least $455 but less than $913, the
Department estimates that there are approximately 732,000 white collar
salaried workers earning at least $455 but less than $913 who are
overtime-eligible but whose employers do not recognize them as
such.\140\ These employees' entitlement to overtime pay will now be
abundantly evident.
---------------------------------------------------------------------------
\138\ We have excluded workers who are in named occupations or
are exempt under another non-EAP exemption.
\139\ Overtime pay status was based on worker responses to the
CPS MORG question concerning whether they receive overtime pay,
tips, or commissions at their job (``PEERNUOT'' variable).
\140\ The Department applies the misclassification estimate
derived here to both the group of workers who usually work more than
40 hours and to those who do not.
---------------------------------------------------------------------------
Table 10 provides estimates of the extent of misclassification of
workers as exempt among first-line supervisors/managers in a variety of
industries using the same method of looking at white collar salaried
employees who fail the duties test and who report working more than 40
hours a week but do not report receiving overtime compensation.\141\
The Department's analysis found that 41 percent of first-line
supervisors/managers of food
[[Page 32464]]
preparation and serving workers, and 35 percent of first-line
supervisors/managers of retail sales workers are misclassified.
---------------------------------------------------------------------------
\141\ The occupational category of first-line supervisors and
managers illustrates the concept across a range of industries. This
category of workers may be susceptible to potential
misclassification because they are the first level of management
above overtime-protected line workers.
---------------------------------------------------------------------------
The Department also found that the industries with the largest
number of workers who fail the duties test and report working more than
40 hours a week but do not receive overtime compensation are retail
trade (125,000 workers) and food services and drinking places (97,000
workers). In these industries, the Department estimates the rate of
misclassification to be 41percent of food services and drinking workers
and 18 percent of retail workers.
Table 10--Estimates of Misclassification among First-Line Supervisors and Managers Covered by the Final Rule Who
Earn at Least $455 and Less than $913
----------------------------------------------------------------------------------------------------------------
Overtime eligible
salaried workers
who earn between Percent who Percent
First-line supervisors/manager occupations $455 and $913 usually work misclassified
per week >40 hours \a\ \b\
(1,000s)
----------------------------------------------------------------------------------------------------------------
Total........................................................ 5,697 15.0 12.8
----------------------------------------------------------------------------------------------------------------
First-line supervisors/managers of . . .
----------------------------------------------------------------------------------------------------------------
Retail sales workers......................................... 208.5 39.9 34.6
Non-retail sales workers..................................... 66.0 32.6 27.5
Production and operating workers............................. 62.4 26.3 24.0
Construction trades and extraction workers................... 58.5 19.9 19.0
Food preparation and serving workers......................... 55.5 44.9 41.0
Housekeeping and janitorial workers.......................... 35.0 22.0 17.2
Mechanics, installers, and repairers......................... 28.9 29.2 27.6
Office and administrative support workers.................... 26.9 14.0 13.1
Personal service workers..................................... 21.0 31.5 24.3
Landscaping, lawn service, and grounds keeping workers....... 17.4 29.3 26.0
----------------------------------------------------------------------------------------------------------------
Source: CPS extract. Workers who are white collar, salaried, subject to the FLSA and covered by the part 541
regulations, earn at least $455 but less than $913 per week, and fail the duties test.
\a\ Percent of overtime eligible salaried workers who usually work more than 40 hours per week. This differs
from the 40 percent of all workers who work more than 40 hours in a week at least once per year because it
only includes overtime eligible workers and excludes occasional overtime workers.
\b\ Share of respondents who report usually working more than 40 hours per week and do not report that they
``usually receive overtime pay, tips, or commissions.''
Since the NPRM was published, RAND has conducted a survey to
identify the number of workers who may be misclassified as EAP exempt.
The survey, a special module to the American Life Panel, asks
respondents (1) hours worked, (2) whether they are paid on an hourly or
salary basis, (3) their typical earnings, (4) whether they perform
certain job responsibilities that are treated as proxies for whether
they would justify exempt status, and (5) whether they receive any
overtime pay. Using these data, Susann Rohwedder and Jeffrey B. Wenger
\142\ found ``11.5 percent of salaried workers were classified as
exempt by their employer although they did not meet the criteria for
being so.'' Using RAND's estimate of the rate of misclassification
(11.5 percent), at the new salary level, the Department estimates that
approximately 1.8 million salaried workers earning between $455 and
$913 per week who fail the standard duties test are currently
misclassified as exempt.\143\
---------------------------------------------------------------------------
\142\ Rohwedder, S. and Wenger, J.B. (2015). The Fair Labor
Standards Act: Worker Misclassification and the Hours and Earnings
Effects of Expanded Coverage. RAND Labor and Population.
\143\ The number of misclassified workers estimated based on the
RAND research cannot be directly compared to the Department's
estimates because of differences in data, methodology, and
assumptions. Although it is impossible to reconcile the two
different approaches without further information, by calculating
misclassified workers as a percent of all salaried workers in its
sample, RAND uses a larger denominator than the Department. If
calculated on a more directly comparable basis, the Department
expects the RAND estimate of the misclassification rate would still
be higher than the Department's estimate.
---------------------------------------------------------------------------
The Department also assessed the impact of the standard salary
level as a bright-line test for EAP exemption by examining: (1) The
number of salaried white collar workers who pass the standard salary
level test but not the duties test and (2) the number of salaried white
collar workers who pass the standard duties test but not the salary
level test.\144\ This first group is equivalent to the number of
salaried white collar workers who are eligible for overtime pay because
they do not pass the standard EAP duties test, but earn above a
specific salary level. The second group is the number of salaried white
collar workers who satisfy the standard duties test but earn less than
a specific standard salary level. The Department makes this assessment
at the current salary level ($455) and the final salary level ($913),
while holding all other factors determining exempt status constant
(e.g., not considering whether the duties test is correctly applied or
potential employer response to the change in the salary level test).
Examining the impact of the salary threshold in isolation from the
application of the duties test or employer adjustments to pay or hours
does not provide a complete picture of the impact of a new salary
threshold. It does, however, allow the Department to evaluate the
effectiveness of the salary level in protecting overtime-eligible white
collar employees without unduly excluding from the exemption employees
performing EAP duties.
---------------------------------------------------------------------------
\144\ These populations are limited to salaried, white collar
workers subject to the FLSA and the Department's part 541
regulations, and not eligible for another (non-EAP) exemption, not
in a named occupation, and not HCE only.
---------------------------------------------------------------------------
As a benchmark, the Department estimates that at the current
standard salary threshold, there are 12.2 million salaried white collar
workers who fail the standard duties test and are therefore overtime
eligible, but earn at least the $455 threshold, while there are only
838,000 salaried white collar
[[Page 32465]]
workers who pass the standard duties test but earn less than the $455
level. Thus the number of salaried white collar workers who pass the
current salary threshold test but not the duties test is nearly 15
times the number of salaried white collar workers who pass the duties
test but are paid below the salary threshold. This underscores the
large number of overtime-eligible workers for whom employers must
perform a duties analysis, and who may be at risk of misclassification
as EAP exempt. At a salary threshold equal to the 40th percentile of
full-time salaried workers in the South ($913), the number of overtime-
eligible salaried white collar workers who would earn at least the
threshold but do not pass the duties test would be reduced almost in
half to 6.5 million (approximately 47 percent of all white collar
salaried employees who fail the duties test). At a salary level of
$913, the number of salaried white collar workers who would pass the
standard duties test but earn less than the salary level would increase
to 5.0 million (approximately 22 percent of all white collar salaried
employees who pass the standard duties test). While this number is
higher than the number of such employees under the Kantor long test
method (approximately 10 percent), it includes employees who would have
been overtime-eligible because they would not have passed the more
rigorous long duties test, which had a cap on the percentage of time an
employee could spend on nonexempt duties, and therefore were not
included under that approach. Further, the number of salaried white
collar workers who pass the new salary threshold test but not the
duties test (6.5 million) is 31 percent higher than the number of
salaried white collar workers who pass the duties test but are paid
below the salary threshold (5.0 million).
Figure 3: Percentage of White Collar Salaried Workers by Earnings
and Duties Test Status for National, Highest-Wage, and Lowest-Wage
Regions
[GRAPHIC] [TIFF OMITTED] TR23MY16.002
As illustrated in Figure 3, as the salary threshold increases there
is a decrease in the share of overtime-eligible white collar workers
for whom employers would be required to make an assessment under the
duties test and who would be subject to possible misclassification
(descending lines). At the same time, as the salary level increases
there is an increase in the share of salaried white collar workers who
pass the standard duties test but are screened from exemption by the
salary threshold (ascending lines).\145\ As previously discussed, the
increase in the share from the traditional 10 percent of exempt
employees excluded by the Kantor long test method reflects the shift to
a salary level appropriate to the standard duties test. Because the
long duties test included a limit on the amount of nonexempt work that
could be performed, it could be paired with a low salary that excluded
few employees performing EAP duties. In the absences of such a
limitation in the duties test, it is necessary to set the salary level
higher (resulting in the exclusion of more employees performing EAP
duties) because the salary level must perform more of the screening
function
[[Page 32466]]
previously performed by the long duties test.
---------------------------------------------------------------------------
\145\ Of employees who are paid on a salary basis of at least
$455 per week and meet the standard duties test, approximately 81
percent earn at least the new level of $913 per week. Conversely,
among overtime-eligible salaried white collar employees earning at
least $455 per week, approximately 47 percent earn less than the new
salary level.
---------------------------------------------------------------------------
At the current salary level (far left of Figure 3), there is a very
large gap between salaried white collar workers who are overtime
eligible but earn at least the threshold (about 87 percent of all
salaried white collar workers who fail the duties test are paid at
least $455 per week) and salaried white collar workers who pass the
standard duties test but do not meet the current salary level (about 4
percent of all salaried white collar workers who pass the duties test
are paid less than $455 per week). At the salary level of the 40th
percentile of weekly earnings of full-time salaried workers in the
South ($913 per week), the percentage of overtime-eligible salaried
white collar workers who earn above the threshold (and thus would be at
risk of misclassification) still remains higher than the percentage of
salaried white collar workers who pass the duties test but earn less
than the salary threshold (and would become overtime protected).\146\
The salary threshold would have to be considerably higher (at a weekly
salary level of approximately $1,100) before the percentage of salaried
white collar workers who earn less than the threshold but pass the
duties test would equal the percentage who are overtime eligible but
earn at least the salary threshold. While some commenters favored
setting the salary level at this intersection point, the Department
concludes that the resulting salary level would unduly impact low-wage
regions and industries.
---------------------------------------------------------------------------
\146\ Approximately 47 percent of white collar salaried workers
who do not pass the duties test earn at least the new salary level
($913 per week). Conversely, approximately 22 percent of employees
who pass the standard duties test earn less than the new salary
level.
---------------------------------------------------------------------------
The Department has also looked at the impact of the new salary
level on these two groups of workers in low-wage (East South Central)
and high-wage (Pacific) Census divisions in addition to
nationally.\147\ For the East South Central Census division, the salary
level at which the percentages of the two groups are about equal is
approximately $995 per week, while in the Pacific Census division, the
salary at which the percentages of the two groups are equal is
approximately $1,217 per week. The Department's new salary level of the
40th percentile of weekly earnings of full-time salaried workers in the
lowest-wage Census Region ($913 per week) falls below the estimate for
the East South Central division. This further supports that the
Department's change in the Final Rule to the lowest-wage Census Region
establishes a salary level that is appropriate for classifying workers
as entitled to minimum wage and overtime pay or potentially exempt in
even the lowest wage areas.
---------------------------------------------------------------------------
\147\ Of the nine Census divisions, the East South Central and
Pacific divisions correspond to the divisions with the lowest and
highest earnings using the Kantor long test method. The East South
Central includes Alabama, Kentucky, Mississippi, and Tennessee. The
Pacific includes Alaska, California, Hawaii, Oregon, and Washington.
---------------------------------------------------------------------------
3. Simplicity and Transparency
The method of basing the standard salary threshold on a particular
percentile of weekly earnings of full-time salaried employees in the
lowest-wage Census Region involves less estimation than previous
updates, making it easier to implement, less prone to error, and more
transparent than before. The method reduces computation by simplifying
the classification of workers to just two criteria: wage or salaried,
and full-time or part-time. Application of the Kantor long test method,
in particular, would involve significant work to replicate since one
would need to identify likely EAP exempt workers, a process which
requires applying the standard duties test to determine the population
of workers used in the earnings distribution. In addition, both the
Kantor long test and 2004 methods exclude workers not subject to the
FLSA, not subject to the salary level test, or in agriculture or
transportation. The method adopted in this Final Rule is easier for
stakeholders to replicate and understand because the standard duties
test does not need to be applied to determine the population of workers
used in the earnings distribution.
International Foodservice Distributors Association, IABI, and
others criticized the Department for not restricting the CPS sample to
workers subject to the part 541 regulations or subject to the salary
level test. As explained in section IV.A.iv., the Department believes
these white collar professionals are part of the universe of executive,
administrative, and professional employees who Congress intended to
exempt from the FLSA's minimum wage and overtime requirements and
including them in the data set achieves a sample that is more
representative of EAP salary levels throughout the economy.
4. Consistency and Predictability
A method that produces very different salary levels in consecutive
years may reduce confidence that the salary levels in any given year
are optimal. The growth rate using the Kantor long test method varies
across years. The primary reason for this is because the Kantor long
test method--or any other method that limits the data set to currently
exempt workers--uses the value of the current salary level test to
identify the population of workers from which the earnings distribution
is determined. Therefore, the Kantor long test method limits the pool
of workers in the sample used to set the salary level to those who meet
the currently required salary level, while the 2004 method and the new
method implemented in this Final Rule do not exclude workers with
salaries below the current salary level. Since FY2004, the salary
levels that would have been generated by the Kantor method increased by
3.6 percent on average annually.\148\ Conversely, since FY2004, the
40th percentile of earnings of full-time salaried workers in the South
has increased by an average of 2.4 percent annually. Similarly, the
salary levels that would have been generated by the 2004 method
(keeping low-wage sectors constant) increased 2.5 percent annually on
average. This explains why the salary levels generated by the Kantor
long test method and the 2004 method have diverged significantly since
2004 (in the third quarter of 2015, Kantor = $684; 2004 = $596).
---------------------------------------------------------------------------
\148\ Values calculated using geometric growth rates and
starting in FY2004, the last time the salary level was increased.
---------------------------------------------------------------------------
For example, in 2003 the Kantor long test method's population of
interest was limited to workers earning at least $155 per week (the
1975 long test salary level); in this Final Rule the Kantor long test
method's population was restricted to workers earning at least $455 per
week. Therefore the population considered in the Kantor long test
method changes each time the salary level is changed. The Department's
Final Rule, like the 2004 method, considers all full-time salaried
workers and does not limit the pool to only those workers who meet the
current salary level test, thus avoiding this potential shortcoming of
the Kantor long test method.
iii. Standard Salary Levels With Alternative Methodologies
When assessing the standard salary level, the Department evaluated
several alternatives in addition to the level chosen. This section
presents the alternative salary levels considered and the bases for
identifying those alternative levels. While commenters proposed other
methods for calculating the salary level, the Department determined
that these alternatives remained the best comparators for evaluating
the chosen salary level methodology. As shown in Table 11, the
alternative salary levels evaluated are:
[[Page 32467]]
Alternative 1: Inflate the 2004 weekly salary level to
FY2015 dollars, which results in a salary level of $570 per week.
Alternative 2: Use the 2004 method to set the salary level
at $596 per week.
Alternative 3: Use the Kantor long test level of $684 per
week.
Alternative 4: Use the 40th earnings percentile of full-
time salaried workers nationally. This was the methodology proposed in
the NPRM. This results in a salary level of $972 per week.
Alternative 5: Adjust the salary level from the Kantor
long test method to reflect the average historical ratio between the
long and short test salary levels. This results in a salary level of
$1,019 per week.
Alternative 6: Inflate the 1975 short duties test salary
level, which is $1,100 in FY2015 dollars.
Table 11--Standard Salary Level and Alternatives, FY2017
------------------------------------------------------------------------
Total increase \a\
Alternative Salary level ---------------------
(weekly/annually) $ %
------------------------------------------------------------------------
Alt. #1: Inflate 2004 level \b\ $570/$29,640 115 25.3
Alt. #2: 2004 method \c\....... 596/31,015 141 31.1
Alt. #3: Kantor long test \c\.. 684/35,568 229 50.3
Final Rule method (40th 913/47,476 458 100.7
percentile of full-time
salaried workers in lowest-
wage Census Region)...........
Alt. #4: 40th percentile of 972/50,544 517 113.6
full-time salaried workers
nationally....................
Alt. #5: Kantor short test \c\. 1,019/52,984 564 123.9
Alt. #6: Inflate 1975 short 1,100/57,205 645 141.8
test level \b\................
------------------------------------------------------------------------
\a\ Change between salary level or alternative and the salary level set
in 2004 ($455 per week).
\b\ Value in FY2015$. Inflated using CPI-U to FY2015$ (most recent data
available).
\c\ Data for 2015, quarter 3.
Alternative 1 inflates the 2004 standard salary level ($455) to
FY2015 dollars using the CPI-U. This produces a salary level of $570
per week. As noted above, the 2004 method sets the standard salary
level at approximately the 20th percentile of full-time salaried
workers in the South and retail industry. Alternative 2 applies this
methodology to more recent data (quarter 3 of 2015), resulting in a
salary level of $596 per week. Alternative 3 produces the salary level
using the Kantor method for the long duties test, resulting in a level
of $684 per week. As we explain earlier in the preamble, the Department
rejected the use of these alternatives because they pair a salary level
appropriate for use with the long duties test with a duties test
appropriate for use with the short test salary.
Alternative 4 sets the standard salary equal to the 40th percentile
of weekly earnings of all full-time salaried workers nationally. This
is the approach that the Department proposed in the NPRM. This
alternative uses the same methodology as this Final Rule--setting the
salary level at the 40th percentile of earnings--but uses a data set
including full-time salaried workers nationwide instead of limiting the
population to the lowest-wage Census Region. The 40th percentile of
earnings of all full-time salaried workers nationally, in the fourth
quarter of 2015, is $972. As discussed in more detail in section
IV.A.iv., the Department declined to adopt this method in response to
commenters' concerns that the proposed salary level could
disproportionately impact workers in low-wage regions and industries by
inappropriately excluding from exemption too many workers who meet the
duties test.
Alternative 5 (Kantor short test) is also based on the Kantor
method but, whereas alternative 3 generates the salary level associated
with the long duties test, alternative 5 generates a level more closely
resembling the salary associated with the short duties test, which the
Department set as a function of the Kantor long test. In the 2004 Final
Rule, the Department replaced the structure of separate short and long
duties tests with a single standard duties test based on the less
restrictive short duties test, which had historically been paired with
a higher salary level test. However, the Department set the standard
salary level in 2004 at a level that was equivalent to the Kantor long
test salary level, which was associated with the long duties test and
limited the amount of nonexempt work that the employee could perform.
In alternative 5, the Department therefore considered revising the
standard salary level to approximate the short test salary that better
matches the standard duties test. On average, the salary levels set in
1949 through 1975 were 149 percent higher for the short test than the
long test. Therefore, the Department inflated the Kantor estimate of
$684 by 149 percent, which generated a short salary level equivalent of
$1,019 per week.\149\ While the Department used the average difference
between the Kantor short and long tests for this alternative, the ratio
of the short to long salary tests ranged from approximately 130 percent
to 180 percent between 1949 and 2004. The low end of this range would
result in a weekly salary of $889; the high end would result in a
salary of $1,231. The Department rejected the use of the Kantor short
test, as explained in this preamble, because we concluded that a
standard salary level of $1,019 per week might exclude from exemption
too many bona fide EAP workers in certain regions or industries.
---------------------------------------------------------------------------
\149\ The Department estimated the average historic ratio of 149
percent as the simple average of the fifteen historical ratios of
the short duties salary level to the long duties salary level
(salary levels were set in 5 years and in each year the salary level
varied between the three exemptions: executive, administrative, and
professional). If the Department had weighted the average ratio
based on the length of time the historic salary levels were in
effect, this would have yielded an average historic ratio of 152
percent and a salary level of $1,039.
---------------------------------------------------------------------------
Alternative 6 inflates the 1975 short duties test salary level to
$1,100 per week in FY2015 dollars. Similar to alternative 5, the
Department rejected the use of a short test salary level due to the
concern that it might exclude from exemption too many bona fide EAP
workers in certain regions or industries.
Section VI.D. details the transfers, costs, and benefits of the new
salary level and the above alternatives. A comparison of the costs and
benefits supports the Department's decision to set the standard salary
level of the 40th percentile of weekly earnings of all full-time
salaried workers in the South ($913 per week).
iv. Methodology for the HCE Total Annual Compensation Level and
Alternative Methods
The Department sets the HCE compensation level equal to the annual
equivalent of the 90th percentile of the
[[Page 32468]]
distribution of earnings of all full-time salaried workers nationally.
BLS calculated the salary level from the CPS MORG data by limiting the
population to nonhourly workers who work full-time (i.e., at least 35
hours per week) and determining the 90th percentile of the resulting
weighted weekly earnings distribution. The 90th percentile of weekly
earnings in the fourth quarter of 2015 was $2,577. This was then
multiplied by 52 to determine the annual earnings equivalent
($134,004). This method uses a percentile towards the top of the
nationwide earnings distribution to reflect the minimal duties criteria
associated with the highly compensated employee exemption.
The Department also evaluated the following alternative HCE
compensation levels:
HCE alternative 1: Leave the HCE compensation level
unchanged at $100,000 per year.
HCE alternative 2: Inflate the 2004 level using CPI-U to
$125,320 per year in FY2015 dollars.
HCE alternative 3: Set the HCE compensation level at
$149,894 per year, which is approximately the annualized level of
weekly earnings exceeded by 6.3 percent of full-time salaried workers.
This is the same percent of such workers that exceeded the HCE
compensation level in 2004. See 69 FR 22169.
The Department continues to believe that HCE alternative 1 is
inappropriate because leaving the HCE compensation level unchanged at
$100,000 per year would ignore more than 10 years of wage growth. In
FY2017, approximately 20 percent of full-time salaried workers are
projected to earn at least $100,000 annually, more than three times the
share who earned that amount in the 2004 Final Rule analysis. HCE
alternative 2 uses the CPI-U to inflate the value set in 2004 instead
of using the higher wage growth over that time period, and therefore
the Department does not believe this alternative accurately reflects
wage growth since 2004. Finally, HCE alternative 3 would set the annual
compensation level at $149,894. The Department believes this
compensation level would be too high to provide a meaningful
alternative test for exemption. Thus, the Department concludes that
adjusting the HCE total annual compensation to reflect the 90th
percentile of earnings of full-time salaried workers nationwide
($134,004) strikes the appropriate balance.
D. Impacts of Revised Salary and Compensation Level Test Values
i. Overview and Summary of Quantified Impacts
The impacts of increasing the EAP salary and compensation levels
will depend on how employers respond. Employer response is expected to
vary by the characteristics of the affected EAP workers. For workers
who usually work 40 hours a week or less, the Department assumes that
employers will reclassify these affected EAP workers as overtime-
eligible and will pay them the same weekly earnings for the same number
of hours worked. While these employees will become overtime eligible,
employers can continue to pay their current salaries and will not need
to make any adjustments as long as the employees' hours do not exceed
40 hours in a workweek. For affected EAP employees who work overtime,
employers may: (1) Pay the required overtime premium for the current
number of overtime hours based upon the current implicit regular rate
of pay; (2) reduce or eliminate overtime hours; (3) reduce the regular
rate of pay so total weekly earnings and hours do not change after
overtime is paid; (4) increase employees' salaries to the new salary
level; or (5) use some combination of these responses. Transfers from
employers to employees and between employees, direct employer costs,
and DWL depend on how employers respond to the Final Rule.
In order to increase the sample size and the reliability and
granularity of results in this analysis, the Department used three
years (FY2013-FY2015) of CPS MORG data to represent the FY2015 labor
market. Monetary values in FY2013 and FY2014 were inflated to FY2015
dollars and the sample was reweighted to reflect the population of
potentially affected workers in FY2015. Afterwards, this pooled sample
was adjusted to reflect the FY2017 economy by further inflating wages
and sampling weights to match projections for FY2017. See section
VI.B.ii.
Table 12 presents the projected impact on affected workers, costs,
transfers, and DWL associated with increasing the standard EAP salary
level from $455 per week to the 40th earnings percentile of full-time
salaried workers in the South, $913 per week; increasing the HCE
compensation level from $100,000 to the 90th earnings percentile of
full-time salaried workers nationally, $134,004 annually; and updating
both of these levels triennially. The Department estimated that the
direct employer costs of this Final Rule will total $677.9 million in
the first year, with average annualized direct costs of $295.1 million
per year over 10 years. In addition to these direct costs, this Final
Rule will also transfer income from employers to employees. Year 1
transfers will equal $1,285.2 million, with average annualized
transfers estimated at $1,189.1 million per year over 10 years.
Finally, the 10-year average annualized DWL was estimated to be $9.2
million. Potential employer costs due to reduced profits and additional
hiring were not quantified but are discussed in section VI.D.iii.
Benefits were also not quantified but are discussed in section
VI.D.vii.
Table 12--Summary of Affected Workers and Regulatory Costs and Transfers, Standard and HCE Salary Levels
----------------------------------------------------------------------------------------------------------------
Future years \b\ Average annualized value
---------------------------------------------------
Impact \a\ Year 1 3% real 7% real
Year 2 Year 10 rate rate
----------------------------------------------------------------------------------------------------------------
Affected Workers (1000s)
----------------------------------------------------------------------------------------------------------------
Standard....................................... 4,163 3,893 5,045 ........... ...........
HCE............................................ 65 73 217 ........... ...........
----------------------------------------------------------------------------------------------------------------
Total...................................... 4,228 3,965 5,261 ........... ...........
----------------------------------------------------------------------------------------------------------------
Direct Employer Costs (Millions FY2017$)
----------------------------------------------------------------------------------------------------------------
Regulatory familiarization \c\................. $272.5 $0.0 $23.1 $37.6 $42.4
Adjustment \d\................................. 191.4 1.5 5.9 25.4 29.0
[[Page 32469]]
Managerial..................................... 214.0 206.6 255.1 225.0 223.6
----------------------------------------------------------------------------------------------------------------
Total direct costs \e\..................... 677.9 208.0 284.2 288.0 295.1
----------------------------------------------------------------------------------------------------------------
Transfers from Employers to Workers (Millions FY2017) \f\
----------------------------------------------------------------------------------------------------------------
Due to minimum wage............................ $34.3 $28.5 $17.8 $23.2 $23.8
Due to overtime pay............................ 1,250.8 907.9 1,589.4 1,178.5 1,165.3
----------------------------------------------------------------------------------------------------------------
Total transfers \e\........................ 1,285.2 936.5 1,607.2 1,201.6 1,189.1
----------------------------------------------------------------------------------------------------------------
DWL (Millions FY2017) \g\
----------------------------------------------------------------------------------------------------------------
DWL............................................ 6.4 8.7 11.1 9.3 9.2
----------------------------------------------------------------------------------------------------------------
\a\ Additional costs and benefits of the rule that could not be quantified or monetized are discussed in the
text.
\b\ These costs/transfers represent a range over the nine-year span.
\c\ Regulatory familiarization costs occur only in years when the salary levels are updated (Years 1, 4, 7, and
10).
\d\ Adjustment costs occur in all years when there are newly affected workers, including years when the salary
level is not updated. Adjustment costs may occur in years without updated salary levels because some workers'
projected earnings are estimated using negative earnings growth.
\e\ Components may not add to total due to rounding.
\f\ This is the net transfer that we primarily describe as being from employers to workers. There may also be
transfers between workers. Moreover, some of these transfers may be intrapersonal (for instance, higher
earnings may be offset by increased hours worked for employees who remain overtime-exempt or may be
supplemented by reduced hours for some newly overtime-protected employees).
\g\ DWL was estimated based on the aggregate impact of both the minimum wage and overtime pay provisions. Since
the transfer associated with the minimum wage is negligible compared to the transfer associated with overtime
pay, the vast majority of this cost is attributed to the overtime pay provision.
ii. Affected EAP Workers
1. Overview
Costs, transfer payments, DWL, and benefits of this Final Rule
depend on the number of affected EAP workers and labor market
adjustments made by employers. The Department estimated there were 22.5
million potentially affected EAP workers: that is, EAP workers who
either (1) passed the salary basis test, the standard salary level
test, and the standard duties test, or (2) passed the salary basis
test, passed the standard salary level test, the HCE total compensation
level test, and the HCE duties test. This number excludes workers in
named occupations who are not subject to the salary tests or who
qualify for another (non-EAP) exemption.
The Department estimated that increasing the standard salary level
from $455 per week to the 40th earnings percentile of all full-time
salaried workers in the lowest-wage Census Region (South, $913 per
week) would affect 4.2 million workers (i.e., the number of potentially
affected workers who earn at least $455 per week but less than $913 per
week). These affected workers compose 18.5 percent of potentially
affected EAP workers. The Department also estimated that 65,000 workers
would be affected by an increase in the HCE compensation level from
$100,000 to the annual earnings equivalent of the 90th percentile of
full-time workers nationally (the number of potentially affected
workers who earn at least $100,000 but less than $134,004 annually and
pass the minimal duties test but not the standard duties test, about
0.3 percent of the pool of potentially affected EAP workers). By Year
10 the total number of affected workers is predicted to increase to 5.3
million.
[[Page 32470]]
[GRAPHIC] [TIFF OMITTED] TR23MY16.003
Table 13 presents the number of affected EAP workers, the mean
number of overtime hours they work per week, and their average weekly
earnings. The 4.2 million workers affected by the increase in the
standard salary level average 1.4 hours of overtime per week and earn
an average of $734 per week. The average number of overtime hours is
low because most of these workers (3.3 million) do not usually work
overtime.\150\ However, the estimated 825,000 affected workers who
regularly work overtime average 11.1 hours of overtime per week. The
65,000 EAP workers affected by the change in the HCE annual
compensation level average 5.5 hours of overtime per week and earn an
average of $2,181 per week ($113,389 per year).
---------------------------------------------------------------------------
\150\ That is, workers who report they usually work 40 hours or
less per week (identified with variable PEHRUSL1 in CPS MORG).
---------------------------------------------------------------------------
Although most affected EAP workers who typically do not work
overtime might experience little or no change in their daily work
routine, those who regularly work overtime may experience significant
changes. The Department expects that workers who routinely work some
overtime or who earn less than the minimum wage are most likely to be
tangibly impacted by the revised standard salary level.\151\ Employers
might respond by: Reclassifying such employees to nonexempt status
(either paying at least the hourly minimum wage and a premium for any
overtime hours, or its salary equivalent with half-time paid for any
overtime hours); reducing workers' regular wage rates (provided that
the reduced rates still exceed the minimum wage); increasing the
employees' salary to the salary level; reducing or eliminating overtime
hours; or using some combination of these responses.
---------------------------------------------------------------------------
\151\ A small proportion (0.3 percent) of affected EAP workers
earns implicit hourly wages that are less than the applicable
minimum wage (the higher of the state or federal minimum wage). The
implicit hourly wage is calculated as an affected EAP employee's
total weekly earnings divided by total weekly hours worked. For
example, workers earning the current $455 per week standard salary
level would earn less than the federal minimum wage if they work 63
or more hours in a week ($455/63 hours = $7.22 per hour).
Table 13--Number of Affected EAP Workers, Mean Overtime Hours, and Mean Weekly Earnings, FY2017
----------------------------------------------------------------------------------------------------------------
Affected EAP workers \a\
-------------------------------- Mean overtime Mean usual
Type of affected EAP worker Number hours weekly
(1,000s) % of total earnings
----------------------------------------------------------------------------------------------------------------
Standard Salary Level
----------------------------------------------------------------------------------------------------------------
All affected EAP workers........................ 4,163 100 1.4 $734
Earn less than the minimum wage \b\............. 11 0.3 29.3 551
Regularly work overtime......................... 825 19.8 11.1 744
CPS occasionally work overtime \c\.............. 150 3.6 8.5 727
----------------------------------------------------------------------------------------------------------------
HCE Compensation Level
----------------------------------------------------------------------------------------------------------------
All affected EAP workers........................ 65 100 5.5 $2,181
Earn less than the minimum wage \b\............. .............. .............. .............. ..............
Regularly work overtime......................... 30 45.8 12.3 2,153
CPS occasionally work overtime \c\.............. 3 4.2 8.5 2,309
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Estimated number of workers exempt under the EAP exemptions who would be entitled to overtime protection
under the updated salary levels (if their weekly earnings do not increase to the new salary levels).
\b\ The applicable minimum wage is the higher of the federal minimum wage and the state minimum wage. HCE
workers will not be impacted by the minimum wage provision. These workers all regularly work overtime and are
also included in that row.
\c\ Workers who do not usually work overtime but did in the CPS reference week. Mean overtime hours are actual
overtime hours in the reference week. Other workers may occasionally work overtime in other weeks. These
workers are identified later when we define Type 2 workers.
[[Page 32471]]
The Department considered two types of overtime workers in this
analysis: regular overtime workers and occasional overtime
workers.\152\ Regular overtime workers typically worked more than 40
hours per week. Occasional overtime workers typically worked 40 hours
or less per week, but they worked more than 40 hours in the week they
were surveyed. The Department considers these two populations
separately in the analysis because labor market responses to overtime
pay requirements may differ for these two types of workers.
---------------------------------------------------------------------------
\152\ Regular overtime workers were identified in the CPS MORG
with variable PEHRUSL1. Occasional overtime workers were identified
with variables PEHRUSL1 and PEHRACT1. As described in section
VI.D.iv., some workers who are not observed working overtime in the
reference week are assumed to be occasional overtime workers. This
analysis therefore accounts for workers who work overtime at some
point in the year, although they did not work overtime in the
reference week.
---------------------------------------------------------------------------
In a representative week, an estimated 152,000 occasional overtime
workers will be affected by either the standard salary level or the HCE
total annual compensation level increase (3.6 percent of all affected
EAP workers; this number does not match Table 13 due to rounding). They
averaged 8.5 hours of overtime in weeks when they work at least some
overtime. This group represents the number of workers with occasional
overtime hours in the week the CPS MORG survey was conducted. In other
weeks, these specific individuals may not work overtime but other
workers, who did not work overtime in the survey week, may work
overtime. Because the survey week is a representative week, the
Department believes the prevalence of occasional overtime in the survey
week, and the characteristics of these workers, is representative of
other weeks (even though a different group of workers would be
identified as occasional overtime workers in a different week).\153\
---------------------------------------------------------------------------
\153\ The Department cannot identify which of the workers in the
CPS sample work occasional overtime in a week other than the
reference week.
---------------------------------------------------------------------------
2. Characteristics of Affected EAP Workers
In this section the Department examines the characteristics of
affected EAP workers. Table 14 presents the distribution of affected
workers across industries and occupations. The industry with the most
affected EAP workers was education and health services (956,000
affected workers). Other industries where a large number of workers are
expected to be affected are professional and business services
(704,000), financial activities (571,000), and wholesale and retail
trade (562,000). The industries with the largest share of potentially
affected workers who are affected are ``other services'' (30 percent)
and leisure and hospitality (30 percent). Impacts by industry are
considered in section VI.D.v.
The management, business, and financial occupation category
accounted for the most affected EAP workers by occupation (1.8
million). A large number of workers are expected to be affected in the
professional and related occupations category (1.4 million). The
occupations with the largest share of potentially affected workers who
are expected to be affected are farming, fishing, and forestry (63
percent),\154\ office and administrative support (39 percent), and
services (37 percent).
---------------------------------------------------------------------------
\154\ There are only 33,000 potentially affected workers in the
farming, fishing, and forestry industry. Although a large share of
potentially affected workers may be affected in this industry, many
of these workers are exempt under another non-EAP exemption, and
therefore their entitlement to overtime will not change.
---------------------------------------------------------------------------
Some commenters expressed concern about the impacts of the rule on
non-profits organizations. The Department found that workers in non-
profits are somewhat more likely to be affected by the rulemaking; 25
percent of potentially affected workers in private non-profits are
affected compared to 18 percent in private for-profit firms.
Table 14--Estimated Number of Exempt Workers With the Current and Updated Salary Levels, by Industry and
Occupation, FY2017
----------------------------------------------------------------------------------------------------------------
Affected as
Workers Potentially share of
Industry/occupation/non-profit subject to affected EAP Not-affected Affected potentially
FLSA workers (millions) \b\ (millions) \c\ affected
(millions) (millions) \a\ (percent)
----------------------------------------------------------------------------------------------------------------
Total........................... 132.75 22.51 18.29 4.23 19
----------------------------------------------------------------------------------------------------------------
By Industry
----------------------------------------------------------------------------------------------------------------
Agriculture, forestry, fishing, 1.12 0.03 0.03 0.01 16
& hunting......................
Mining.......................... 1.04 0.23 0.21 0.02 10
Construction.................... 7.41 0.80 0.67 0.13 16
Manufacturing................... 14.82 3.26 2.89 0.36 11
Wholesale & retail trade........ 19.03 2.46 1.90 0.56 23
Transportation & utilities...... 6.95 0.79 0.65 0.13 17
Information..................... 2.86 0.95 0.78 0.17 18
Financial activities............ 9.21 3.43 2.86 0.57 17
Professional & business services 14.22 4.64 3.94 0.70 15
Education & health services..... 32.95 3.73 2.77 0.96 26
Leisure & hospitality........... 12.58 0.78 0.54 0.23 30
Other services.................. 5.36 0.58 0.40 0.18 30
Public administration........... 5.19 0.85 0.65 0.20 24
----------------------------------------------------------------------------------------------------------------
By Occupation
----------------------------------------------------------------------------------------------------------------
Management, business, & 19.18 11.36 9.52 1.84 16
financial......................
Professional & related.......... 30.30 7.66 6.31 1.35 18
Services........................ 23.61 0.20 0.13 0.08 37
Sales and related............... 13.72 2.16 1.60 0.56 26
Office & administrative support. 17.82 0.94 0.57 0.37 39
Farming, fishing, & forestry.... 0.84 0.00 0.00 0.00 63
Construction & extraction....... 6.16 0.03 0.02 0.01 21
[[Page 32472]]
Installation, maintenance, & 4.63 0.04 0.03 0.01 15
repair.........................
Production...................... 8.31 0.08 0.07 0.01 17
Transportation & material moving 8.20 0.03 0.02 0.01 24
----------------------------------------------------------------------------------------------------------------
By Non-Profit and Government Status
----------------------------------------------------------------------------------------------------------------
Non-profit, private \d\......... 9.12 1.81 1.35 0.46 25
For profit, private............. 105.08 18.80 15.49 3.31 18
Government (state, local, and 18.55 1.91 1.45 0.46 24
federal).......................
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Workers who are white collar, salaried, not eligible for another (non-EAP) overtime exemption, and not in a
named occupation.
\b\ Workers who continue to be exempt after the increases in the salary levels (assuming affected workers'
weekly earnings do not increase to the new salary level).
\c\ Estimated number of workers exempt under the EAP exemptions who would be entitled to overtime protection
under the updated salary levels (if their weekly earnings do not increase to the new salary levels).
\d\ As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed
by enterprises that do not meet the enterprise coverage requirements because there is no reliable way of
estimating this population. The estimates also do not exclude workers at non-covered enterprises who are not
individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers
generally, it may have a larger impact (and result in a larger overestimate) for workers in non-profits
because when determining enterprise coverage only revenue derived from business operations, not charitable
activities, are included.
Table 15 presents the distribution of affected workers based on
Census Regions and divisions, and MSA status. The region with the most
affected workers is the South (1.7 million). However, as a share of
potentially affected workers in the region, the South is not unduly
affected relative to other regions (22 percent are affected compared
with 16 to 19 percent in other regions). Impacts by region are
considered in section VI.D.v. Although the vast majority of affected
EAP workers resided in MSAs (3.8 of 4.2 million, or 89 percent), this
largely reflects the fact that 86.7 percent of all workers reside in
metropolitan areas.\155\
---------------------------------------------------------------------------
\155\ Identified with CPS MORG variable GTMETSTA.
---------------------------------------------------------------------------
Employers in low-wage industries, regions, and non-metropolitan
areas may perceive a greater impact due to the lower wages and salaries
typically paid in those areas and industries. The Department believes
the salary level adopted in this Final Rule (which we have adjusted
downward from the amount proposed in the NPRM to account for these low-
wage areas) is appropriate. In addition, the vast majority of
potentially affected workers reside in metropolitan areas and do not
work in low-wage industries, and workers in low-wage regions are not
unduly affected relative to other regions.
Table 15--Estimated Number of Potentially Affected EAP Workers With the Current and Updated Salary Levels, by
Region, Division, and MSA Status, FY2017
----------------------------------------------------------------------------------------------------------------
Affected as
Workers Potentially share of
Region/division/metropolitan subject to affected EAP Not-affected Affected potentially
status FLSA workers (millions) \b\ (millions) \c\ affected
(millions) (millions) \a\ (percent)
----------------------------------------------------------------------------------------------------------------
Total........................... 132.75 22.51 18.29 4.23 19
----------------------------------------------------------------------------------------------------------------
By Region/Division
----------------------------------------------------------------------------------------------------------------
Northeast....................... 24.77 4.80 4.02 0.79 16
New England................. 6.69 1.36 1.17 0.19 14
Middle Atlantic............. 18.08 3.44 2.84 0.59 17
Midwest......................... 29.53 4.73 3.84 0.88 19
East North Central.......... 19.97 3.17 2.58 0.58 18
West North Central.......... 9.56 1.56 1.26 0.30 19
South........................... 48.21 7.84 6.10 1.74 22
South Atlantic.............. 25.02 4.47 3.51 0.95 21
East South Central.......... 7.23 0.94 0.69 0.25 27
West South Central.......... 15.96 2.44 1.90 0.53 22
West............................ 30.25 5.15 4.32 0.82 16
Mountain.................... 9.48 1.51 1.22 0.29 19
Pacific..................... 20.76 3.64 3.10 0.53 15
----------------------------------------------------------------------------------------------------------------
[[Page 32473]]
By Metropolitan Status
----------------------------------------------------------------------------------------------------------------
Metropolitan.................... 114.56 20.82 17.07 3.75 18
Non-metropolitan................ 17.24 1.59 1.14 0.45 28
Not identified.................. 0.96 0.10 0.08 0.03 25
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Workers who are white collar, salaried, not eligible for another (non-EAP) overtime exemption, and not in a
named occupation.
\b\ Workers who continue to be exempt after the increases in the salary levels (assuming affected workers'
weekly earnings do not increase to the new salary level).
\c\ Estimated number of workers exempt under the EAP exemptions who would be entitled to overtime protection
under the updated salary levels (if their weekly earnings do not increase to the new salary levels).
iii. Costs
1. Summary
Three direct costs to employers were quantified in this analysis:
(1) Regulatory familiarization costs; (2) adjustment costs; and (3)
managerial costs. Regulatory familiarization costs are costs to learn
about the change in the regulation, occurring primarily in Year 1 and
to a lesser extent in future years when the salary and compensation
levels are automatically updated (e.g., Years 4, 7, 10). Adjustment
costs are costs incurred by firms to determine workers' exemption
statuses, notify employees of policy changes, and update payroll
systems. Managerial costs occur because employers may spend more time
scheduling newly nonexempt employees and more closely monitor their
hours to minimize or avoid paying the overtime premium.
The Department estimated costs for Year 1 assuming that the first
year of the analysis will be FY2017. The Department estimated that Year
1 regulatory familiarization costs will equal $272.5 million, Year 1
adjustment costs will sum to $191.4 million, and Year 1 managerial
costs will total $214.0 million (Table 16). Total direct employer costs
in Year 1 are estimated to equal $677.9 million. Regulatory
familiarization costs, adjustment costs and management costs are
recurring and thus are projected for years 2 through 10 (section
VI.D.x.).
Many commenters, including PPWO, NRF, and the National Grocers
Association, stated that the NPRM underestimated the costs of complying
with the rulemaking. The Assisted Living Federation of America,
Associated Builders and Contractors, and the College and University
Professional Association for Human Resources (CUPA-HR) stated that 80
to 90 percent of respondents to their member surveys indicated that the
Department's costs estimates were understated. Throughout this
analysis, the Department addresses comments relating to regulatory
familiarization costs, adjustment costs, and managerial costs in turn.
We also discuss costs that are not quantified and comments asserting
that the regulation will result in additional unquantified costs in
section VI.D.iii. Regulatory familiarization costs, adjustment costs
and managerial costs associated with automatically updating the
standard salary level are discussed in section VI.D.x.
Table 16--Summary of Year 1 Direct Employer Costs
[Millions]
----------------------------------------------------------------------------------------------------------------
HCE
Direct employer costs Standard Compensation Total
salary level level
----------------------------------------------------------------------------------------------------------------
Regulatory familiarization \a\.................................. .............. .............. $272.5
Adjustment...................................................... $188.5 $2.9 191.4
Managerial...................................................... 208.6 5.5 214.0
Total direct costs.............................................. 397.0 8.4 677.9
----------------------------------------------------------------------------------------------------------------
\a\ Regulatory familiarization costs are assessed jointly for the change in the standard salary level and the
HCE compensation level.
2. Regulatory Familiarization Costs
Changing the standard salary and HCE total compensation thresholds
will impose direct costs on businesses by requiring them to review the
regulation. It is not clear whether regulatory familiarization costs
are a function of the number of establishments or the number of firms.
The Department believes that generally the headquarters of a firm will
conduct the regulatory review for the entire company; however, some
firms provide more autonomy to their establishments, and in such cases
regulatory familiarization may occur at the establishment level. To be
conservative, the Department uses the number of establishments in its
cost estimate assuming that regulatory familiarization occurs at a
decentralized level.
The Department believes that all establishments will incur some
regulatory familiarization costs, even if they do not employ exempt
workers, because all establishments will need to confirm whether this
Final Rule includes any provisions that may impact their workers. Firms
with more affected EAP workers will likely spend more time reviewing
the regulation than firms with fewer or no affected EAP workers (since
a careful reading of the regulations will probably follow the initial
decision that the firm is affected). However, the Department does not
[[Page 32474]]
know the distribution of affected EAP workers across firms and so an
average cost per establishment is used.
In the NPRM, the Department requested that commenters provide data
if possible on the costs of regulatory familiarization, and a few
commenters provided estimates based on personal judgments or responses
by members. While the information provided may reflect the experiences
of individual commenters, the information does not provide a basis for
the Department to revise its estimate of time required for regulatory
familiarization. The Department continues to believe that our estimate
of one hour per establishment in the NPRM is a reasonable average that
accounts for some businesses requiring more time while other businesses
require less time.
To estimate the total regulatory familiarization costs, three
pieces of information must be estimated: (1) A wage level for the
employees reviewing the rule; (2) the number of hours employees spend
reviewing the rule; and (3) the number of establishments employing
workers. The Department's analysis assumes that mid-level human
resource workers with a median wage of $24.86 per hour will review the
Final Rule.\156\ Assuming benefits are paid at a rate of 46 percent of
the base wage and one hour of time is required for regulatory
familiarization, the average cost per establishment is $36.22.\157\ The
number of establishments with paid employees was 7.52 million.\158\
Regulatory familiarization costs in Year 1 were estimated to be $272.5
million ($36.22 per hour x 1 hour x 7.52 million establishments).\159\
Regulatory familiarization costs in future years are discussed in
section VI.D.x.
---------------------------------------------------------------------------
\156\ We calculated this wage as the projected median wage in
the CPS for workers with the Census 2010 occupations ``human
resources workers'' (0630); ``compensation, benefits, and job
analysis specialists'' (0640); and ``training and development
specialists'' (0650) in FY2013-FY2015, projected to FY2017. The
Department determined these occupations include most of the workers
who would conduct these tasks. Bureau of Labor Statistics, U.S.
Department of Labor, Occupational Outlook Handbook, 2014-15 Edition.
These are the same occupation classifications used in the NPRM but
updated to reflect the Census 2010 occupational classification.
\157\ The benefits-earnings ratio is derived from the BLS'
Employer Costs for Employee Compensation data using variables
CMU1020000000000D and CMU1030000000000D. This fringe benefit rate
includes some fixed costs such as health insurance. The Department
believes that the overhead costs associated with for this rule are
small because existing systems maintained by employers to track
currently hourly employees can be used for newly overtime eligible
workers. However, acknowledging that there might be additional
overhead costs, as a sensitivity analysis of results, we calculate
the impact of more significant overhead costs by including an
overhead rate of 17 percent. This rate has been used by the
Environmental Protection Agency (EPA) in its final rules (see for
example, EPA Electronic Reporting under the Toxic Substances Control
Act Final Rule, Supporting & Related Material), and is based upon a
Chemical Manufacturers Association study. An overhead rate from
chemical manufacturing may not be appropriate for all industries, so
there may be substantial uncertainty concerning the estimates based
on this illustrative example. Using an overhead rate of 17 percent
would increase total costs (including regulatory familiarization
costs, adjustment costs, and managerial costs) by from $677.9
million in Year 1 to $757.0 million, or 11.7 percent. For the
reasons stated above, the Department believes this estimate
overestimates the additional costs arising from overhead costs while
recognizing that there is not one uniform approach to estimating the
marginal cost of labor.
\158\ Data for 2012 were the most recent available at the time
of writing. Survey of U.S. Businesses 2012. Available at: https://www.census.gov/econ/susb/. Also included in the number of
establishments incurring regulatory familiarization costs are the
90,106 state and local governments reported in the 2012 Census of
Governments: Employment Summary Report. Available at: http://www2.census.gov/govs/cog/g12_org.pdf.
\159\ As previously noted, the Department chose to use the
number of establishments rather than the number of firms to provide
a more conservative estimate of the regulatory familiarization cost.
Using the number of firms, 5.82 million, would result in a reduced
regulatory familiarization cost estimate of $210.7 million in Year
1.
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Wage Rate
The Department estimated in the NPRM that one hour of regulatory
familiarization time costs $34.19 based on the wage for a mid-level
human resources worker adjusted to include benefits. We follow the same
approach in this RIA; however, due to growth in wages, the wage rate
used in the Final Rule is $36.22. The Chamber asserted that time spent
on regulatory familiarization will generally be conducted by a manager
with a base wage better approximated at $60 per hour, multiplied by a
mark-up of 3.3 to cover indirect overhead and support.\160\ The
National Association of Landscape Professionals (NALP) commented that
92 percent of the members it surveyed believe the wage rate should be
``be more like $51.00 to $68.00 per hour.'' \161\ The Department
believes that we have utilized an appropriate wage rate; we similarly
used wage rates for human resources specialists in the 2004 Final Rule
(using a low to high range of such rates, depending upon employer size,
rather than a single mid-level wage rate as we do currently). 69 FR
22222-24. Although higher paid managers may be briefed on the rule, we
expect in general that mid-level human resource specialists will be the
individuals primarily responsible for becoming familiar with the new
rule. Moreover, this wage estimate is an average across all firms, some
of which will pay higher rates and others lower rates.
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\160\ The Chamber also incorrectly stated that the Department
used the wage for a ``human resources office administrative clerk;''
the Department actually used wages for ``human resources, training,
and labor relations specialists.''
\161\ NALP believes both time and hourly cost are
underestimated. It is not clear whether the amount cited is the
hourly wage rate members believe is appropriate or the total cost
across more than one hour of time.
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Time Requirement
In the NPRM, the Department estimated each establishment will, on
average, spend one hour on regulatory familiarization. Firms with more
affected EAP workers will likely spend more time reviewing the
regulation than firms with fewer or no affected EAP workers. No data
were identified from which to estimate in the NPRM the amount of time
required to review the regulation, and the Department requested that
commenters provide data if possible. The Department did not receive any
reliable data from commenters, although some commenters suggested
different amounts of time based on their personal judgment or surveys
they conducted. The American Hotel and Lodging Association (AH&LA), the
National Roofing Contractors Association, NRF and others commented that
regulatory familiarization will take longer than one hour, with some
stating that several individuals in each of their establishments will
need to read and familiarize themselves with the new rule. AH&LA
estimated it will take at least four hours per establishment to become
familiar with the Final Rule. The Chamber commented that an average of
6 hours of time is appropriate because: ``For the very smallest
establishments a familiarization time of one to two hours may be
possible, but for larger establishments the number of labor hours may
amount to hundreds or more.''
The Department believes these commenters significantly overestimate
the time necessary for regulatory familiarization. The EAP exemptions
have been in existence in one form or another since 1938, and were
updated as recently as 2004. While the 2004 rulemaking promulgated a
host of changes, including revisions to the duties test, the most
significant change promulgated in this rulemaking is setting a new
standard salary level for exempt workers, and updating that salary
level every three years. The Department believes that, on average, one
hour is sufficient to time to read about and understand, for example,
the change in the standard salary level from $455 to $913 per week, and
we note that the regulatory text changes comprise only a few pages.
[[Page 32475]]
Recurrence
The Chamber criticized the Department for failing to estimate
regulatory familiarization costs occurring after the first year,
commenting that regulatory familiarization costs would repeat with each
automatic update to the salary level. Upon further consideration, the
Department agrees there will be some regulatory familiarization costs
in future years when the salary level is updated (e.g., 2020, 2023,
2026). However, because subsequent updates will use the same method
adopted in this Final Rule, and this rule informs stakeholders that the
salary and compensation levels will be updated every three years, there
is little additional regulatory change with which employers will have
to familiarize themselves. Accordingly, the Department has added 5
minutes per establishment of regulatory familiarization time to access
and read the published salary levels in future years when the salary
and compensation levels are automatically updated (see projected costs
in section VI.D.x.).
3. Adjustment Costs
Changes in the standard salary and HCE compensation levels will
impose direct costs on firms by requiring them to re-determine the
exemption status of employees, update and adapt overtime policies,
notify employees of policy changes, and adjust their payroll systems.
The Department believes the size of these costs will depend on the
number of affected EAP workers and will occur in any year when
exemption status is changed for any workers. To estimate adjustment
costs three pieces of information must be estimated: (1) A wage level
for the employees making the adjustments; (2) the amount of time spent
making the adjustments; and (3) the estimated number of newly affected
EAP workers. The Department again estimated that the average wage with
benefits for human resources, training, and labor relations specialists
is $36.22 per hour (as explained above). No applicable data were
identified from which to estimate the amount of time required to make
these adjustments.\162\ However, in response to comments claiming that
the Department underestimated the adjustment time, for this Final Rule,
the Department increased the time from one hour to 75 minutes per
affected worker. The estimated number of affected EAP workers in Year 1
is 4.2 million (as discussed in section VI.D.ii.). Therefore, total
Year 1 adjustment costs were estimated to equal $191.4 million ($36.22
x 1.25 hours x 4.2 million workers).
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\162\ Costs stated in the 2004 Final Rule were considered, but
because that revision included changes to the duties test, the cost
estimates are not directly applicable; in addition, the 2004 Final
Rule did not separately account for managerial costs.
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Adjustment costs may be partially offset by a reduction in the cost
to employers of determining employees' exempt status. Currently, to
determine whether an employee is exempt firms must apply the duties
test to salaried workers who earn at least $455 per week. Following
this rulemaking, firms will no longer be required to apply the
potentially time-consuming duties test to employees earning less than
the updated salary level. This will be a clear cost savings to
employers for employees who do not pass the duties test and earn at
least $455 per week but less than the updated salary level. The
Department did not estimate the potential size of this cost savings.
Wage Rate
The Chamber commented that a more appropriate wage rate would be
$200 per hour, based on a manager's wage of around $60 per hour,
multiplied by a mark-up (or loaded) rate of 3.3 to cover indirect
overhead and support. The Department believes its use of the occupation
of ``human resources, training, and labor relations specialists'' and
corresponding wage rate appropriately reflects the occupational
classification and wage rate on average for the individuals who will
re-determine the exemption status of employees, update and adapt
overtime policies, notify employees of policy changes, and adjust their
payroll systems. The Department recognizes that in some businesses,
more senior staff will conduct at least portions of this work, while in
other businesses, more junior staff may perform at least a portion of
this work. Therefore, the Department continues to rely on its use of
the ``human resources, training, and labor relations specialists'' and
corresponding wage rate to reflect the average costs to businesses
impacted by this Final Rule. The Department also disagrees with the
mark-up rate suggested by the Chamber, because an additional 75 minutes
of time will have little-to-no effect on the cost of overhead and
support services. No other commenters provided alternative wage rates.
Time Requirement
To estimate adjustment costs, the Department assumed in the NPRM
that each establishment will, on average, spend one hour of time per
affected worker to make adjustments required because of this
rulemaking. 80 FR 38566. The Department requested that commenters
provide any applicable data concerning this issue, but no applicable
data were identified from which to estimate the amount of time required
to make these adjustments. The Department believes that commenters that
did address adjustment costs significantly overestimated the time
necessary for making appropriate workplace adjustments. However, the
Department agrees that some increase is warranted, and thus increased
the estimated average adjustment time to 75 minutes per affected
worker.
Based on feedback from their members, AH&LA and Island Hospitality
Management estimated that employers will need approximately four to
seven hours per affected employee. The National Council of Chain
Restaurants (NCCR) stated that ``[e]mployers have told NCCR that the
approximate time needed to make such adjustments will be 3-4 hours per
employee,'' and NRF reported that its members ``estimate it would take
at least three to four hours per affected employee to make applicable
adjustments.'' The American Insurance Association and the Property
Casualty Insurers Association of America (AIA-PCI) asserted that
adjustments will require more time than the Department estimated
because employers will not make adjustments in response to the rule
``in a vacuum; legal, HR, and operations all will need to be involved
to assess risk, determine value, and ultimately decide whether a
position, or classification, or part of a classification should be
reclassified to non-exempt as a result of the Department's salary level
increase.'' New Castle Hotels & Resorts similarly stated that a
``hotel's GM and HR as well as the Department Head and the effected
manager would all need to be involved together with payroll.'' AIA-PCI
also asserted that in many cases, information technology systems
``cannot be configured to accommodate exempt and non-exempt employees
in the same job classification,'' and thus additional time will be
required to reconfigure these systems.
A report by Oxford Economics, submitted by NRF and referenced by
other commenters, estimated the ``transitional costs'' associated with
this rule.\163\ The tasks covered by Oxford
[[Page 32476]]
Economics' transition cost measure include: ``identifying which
employees ought to have salaries adjusted and then making and
communicating that adjustment''; ``converting a salaried employee to an
hourly rate and then adding that employee to the time tracking system
(already in use for existing hourly employees)''; disruptions to normal
business operations; time for ``HR personnel [to] communicate and
implement the change''; time for additional IT support for time-
tracking system; costs associated with the added complexity of managing
and scheduling people's time; and costs associated with ``establishing
an hourly rate (lower than existing base salary) that is calculated so
that overall compensation (including new overtime payments) will leave
current total compensation unchanged.'' These costs appear to be
roughly comparable to the Department's adjustment cost category,
although with some inclusion of costs the Department categorized as
managerial costs. However, Oxford Economics also included costs
associated with converting newly nonexempt workers from salaried to
hourly status, which the Department recognizes is a choice some
employers may make in responding to this rule, but is not a requirement
of the regulation. Oxford Economics estimated Year 1 transactional
costs of $648 million in the retail and restaurant industry if the
salary level were set at $808 per week, and $874 million if the salary
level were set at $984 per week. These costs for the retail and
restaurant industry alone are roughly 4 to 5.5 times larger than our
NPRM estimate for all industries ($160.1 million based on a $921 salary
level in Year 1). The Department has evaluated Oxford Economics'
analysis and determined that this discrepancy is due in part to Oxford
Economics' estimation of the time requirement for adjustment.\164\
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\163\ Oxford Economics. (2015). Rethinking Overtime: How
Increasing Overtime Exemption Thresholds Will Affect The Retail And
Restaurant Industries. Two additional documents produced by Oxford
Economics were also included by some commenters: Letter dated July
17, 2015 that updates the estimates provided in the ``Rethinking
Overtime'' paper in light of the Department's proposal; and a letter
dated August 18, 2015 that examines states' prevailing wage levels
and the Department's automatic updating proposal.
\164\ Although Oxford Economics' Table A2 reports some values
they used to calculate transactional costs, the report NRF submitted
to the record does not explain why they chose these values, nor does
it describe in detail the source for these values, other than noting
that it obtained information from ``interviews with industry
experts.'' Therefore, the Department could not easily assess the
reasonableness of these estimates. See https://nrf.com/sites/default/files/Documents/retail%20library/Rethinking-Overtime-Appendices.pdf.
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Oxford Economics assumed that adjustment costs for Type 1 workers
(those who do not work overtime) are zero, and that each worker who
receives a pay increase to the new salary level in order to remain
exempt (Oxford Economics' equivalent to Type 4 workers) requires 1/
1000th of a human resource employee full time equivalent; this equates
to approximately 2.1 hours of time per affected worker (i.e., 2,080 FTE
hours/1,000).\165\ These per worker cost estimates are comparable to
the Department's cost estimates. However, for employees reclassified as
nonexempt as a result of the rulemaking, Oxford Economics appears to
estimate that transitioning these workers will require 34.7 hours per
worker for ``group 2'' workers and 10.4 hours per worker for ``group
3'' workers.\166\ These workers appear to be very roughly comparable to
the Department's Type 2 and 3 workers, but with much more extreme
assumptions concerning how employers will respond (e.g., all overtime
hours will be eliminated instead of reduced as the Department expects).
Oxford Economics defines ``group 2'' workers as those who ``will have
their hourly wage rate set in such a way that their total compensation
remains unchanged,'' and ``group 3'' workers as those who will ``see
their hours cut to 38 per week, with their salary cut proportionally.''
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\165\ As detailed in section VI.D.iv., the Department concludes
that employers will respond to the Final Rule differently for
different categories of workers, depending upon whether they work
overtime and the nature of the overtime. The Department has divided
workers into four categories, based upon the nature of any overtime
work. Type 1 workers do not work overtime; Type 2 workers work
occasional overtime (some on a regular basis and some on an
unpredictable basis): Type 3 workers regularly work overtime; and
Type 4 workers regularly work overtime and will earn sufficient
wages after the Final Rule is implemented that employers will
increase their salaries to the new level.
\166\ Oxford Economics also estimated costs related to changing
computer systems. This discussion focuses on Human Resources costs.
---------------------------------------------------------------------------
The Department believes Oxford Economics' estimates of the time
requirement for adjusting Type 2 and 3 (Oxford Economics' ``group 2''
and ``group 3'') workers are too high. It is unreasonable to expect,
for example, that it will take a human resource worker 34.7 hours
(almost an entire workweek) to reclassify each Type 2 worker as
nonexempt, and possibly adjust his or her implicit hourly wage rate so
the total compensation remains unchanged. As we stated above, in this
Final Rule, the Department estimates an average of 75 minutes of
adjustment time per affected worker. However, employers will need to
exert minimal effort to determine the change in status of perhaps 60
percent of affected workers (e.g., the majority of affected workers who
work no overtime). Thus, we assume that the average of 75 minutes per
worker is concentrated on the subset of employees requiring more
analysis to make a decision. If, for example, we allocate 0.5 hours per
Type 1 worker and 50 percent of Type 2 workers (i.e., workers whose
hours and base wage rates do not change), then that still leaves 3.0
hours per worker for the remaining 50 percent of Type 2 workers, and
all Type 3 and Type 4 workers. Finally, larger firms are likely to
experience economies of scale in evaluating affected workers; a
decision on how to treat a worker with specific characteristics (e.g.,
earnings, hours, duties) is likely to be applicable to multiple
workers.
With respect to the concern raised by AIA-PCI about reconfiguring
information technology systems to include both exempt and overtime-
protected workers, the Department notes that most organizations
affected by the rule already employ overtime-eligible workers and have
in place payroll systems and personnel practices (e.g., requiring
advance authorization for overtime hours) so that additional costs
associated with the rule should be relatively small in the short
run.\167\
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\167\ The Department notes that no particular form or order of
records is required and employers may choose how to record hours
worked for overtime-eligible employees. For example where an
employee works a fixed schedule that rarely varies, the employer may
simply keep a record of the schedule and indicate the number of
hours the worker actually worked only when the worker varies from
the schedule. This is sometimes referred to as exceptions reporting.
29 CFR 516.2(c).
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Recurrence
The Chamber also expressed concern the Department underestimated
projected adjustment costs associated with automatic updating, stating
that employers would incur significant adjustment costs in years the
salary is automatically updated, even if subsequent salary level
changes affect fewer workers than the initial increase (to $913).
Similarly, PPWO stated that the Department's cost projections did not
account for the fact that ``compliance review activities that take
place in Year 1 will be repeated on an annual basis, for different
groups of employees that fall below the new salary minimum.'' See also
North Dakota Bankers Association (the Department should recognize that
future salary updates require time to determine whether an employee
should be classified as exempt or nonexempt, not just time to reprogram
the payroll). Contrary to these comments, the Department's estimated
adjustment costs include costs in all years for newly affected workers.
The Department limits adjustment costs in projected years to newly
affected workers because there is
[[Page 32477]]
no need to ``adjust'' for workers who are already overtime eligible
(due to a prior adjustment of the EAP salary level) when the salary
level is updated again.
4. Managerial Costs
If employers reclassify employees as overtime eligible due to the
changes in the salary levels, then firms may incur ongoing managerial
costs associated with this Final Rule because the employer may schedule
and more closely monitor an employee's hours to minimize or avoid
working overtime-eligible employees more than 40 hours in a week. For
example, the manager of a reclassified worker may have to assess
whether the marginal benefit of scheduling the worker for more than 40
hours exceeds the marginal cost of paying the overtime premium.
Additionally, the manager may have to spend more time monitoring the
employee's work and productivity since the marginal cost of employing
the worker per hour has increased. Unlike regulatory familiarization
and adjustment costs, which occur primarily in Year 1 and to a much
lesser extent in years when the salary is automatically updated,
managerial costs are incurred more uniformly every year.
Because there was little precedent or data to aid in evaluating
these costs, the Department examined several sources to estimate costs.
First, prior part 541 rulemakings were reviewed to determine whether
managerial costs were estimated. No estimates were found. This cost was
not quantified for the 2004 rulemaking. Second, a literature review was
conducted in an effort to identify information to help guide the cost
estimates; again, no estimates were found. The Department also
requested data from the public applicable to this cost estimate;
however, as discussed below, the Department received no time estimates
that seemed more appropriate than the estimates used in the NPRM.
Based on commenters' concerns, discussed below, that managerial
costs are applicable to more workers than were included in the NPRM,
the Department expanded the number of workers for whom employers
experience additional managerial costs (section VI.D.iv.) As in the
NPRM, managerial costs are applied to workers who are reclassified as
overtime-protected and who either regularly work overtime or
occasionally work overtime but on a regular basis. For the Final Rule,
however, the Department expanded its count of the number of workers who
occasionally work regular overtime (defined later as half of Type 2
workers) by assuming that some Type 1 workers (who report that they do
not work overtime) will actually work overtime during some week of the
year. Therefore, the number of workers for whom we apply managerial
costs increased from 808,000 using the NPRM methodology to 1.2 million
using the Final Rule methodology.
To provide a sense of the potential magnitude of these costs, the
Department estimated these costs assuming that management spends an
additional five minutes per week scheduling and monitoring each
affected worker expected to be reclassified as overtime eligible as a
result of this rule, and whose hours are adjusted (1.2 million affected
EAP workers as calculated in section VI.D.iv.). As will be discussed in
detail below, most affected workers do not currently work overtime, and
there is no reason to expect their hours worked to change when their
status changes from exempt to nonexempt. Similarly, employers are
likely to find that it is less costly to give some workers a raise in
order to maintain their exempt status. For both these groups of
workers, management will have little or no need to increase their
monitoring of hours worked. Under these assumptions, the additional
managerial hours worked per week were estimated to be 97,300 hours ((5
minutes/60 minutes) x 1.2 million workers).
The median hourly wage in FY2017 for a manager is estimated to be
$29.04 and benefits are estimated to be paid at a rate of 46 percent of
the base wage, which totals $42.31 per hour.168 169
Multiplying the additional 97,300 weekly managerial hours by the hourly
wage of $42.31 and 52 weeks per year, the Year 1 managerial costs were
estimated to total $208.6 million due to this rule. Although the exact
magnitude would vary with the number of affected EAP workers each year,
managerial costs would be incurred annually.
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\168\ Calculated as the projected median wage in the CPS for
workers in management occupations (excluding chief executives) in
FY2013-FY2015, projected to FY2017.
\169\ The adjustment ratio is derived from the BLS' Employer
Costs for Employee Compensation data using variables
CMU1020000000000D and CMU1030000000000D.
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Additional Investment
Some commenters, such as the National Grocers Association and the
National Association of Area Agencies on Aging asserted that managerial
costs will be higher than the Department estimated because some
employers may need to purchase new systems or hire additional personnel
to monitor hours. However, the Department believes that most companies
already manage a mix of exempt and nonexempt employees, and already
have policies and recordkeeping systems in place for nonexempt
employees. Thus, they are unlikely to need to purchase systems or hire
additional monitoring personnel as a result of this rulemaking.
Moreover, no particular form or order of records is required and
employers may choose whatever form of recordkeeping works best for
their business and their employees. For example, where an employee
works a fixed schedule that rarely varies, the employer may simply keep
a record of the schedule and indicate the number of hours the worker
actually worked only when the worker varies from the schedule
(``exceptions reporting''). 29 CFR 516.2(c). Because simple
recordkeeping systems, such as exceptions reporting systems for workers
on a fixed schedule, are permissible, costs may be minimal.
Time Requirement
Several commenters asserted that scheduling and monitoring newly
overtime eligible workers will require more time than the Department
assumes. One human resource manager commented that the time required
will ``be closer to 15 minutes than 5,'' and AH&LA stated that its
members believe these costs ``will be closer to 25 minutes to an hour a
week.'' NCCR stated that it received feedback from employers in the
restaurant industry who estimated that managerial costs will range from
one to three hours per week. NRF similarly states that its members
estimated that managerial costs would range from one to three hours per
week.
The Department believes these commenters' estimates are excessive.
For example, 75 percent of currently exempt employees who work overtime
average less than 10 hours of overtime per week. Assuming a newly
nonexempt employee averages 10 hours of overtime per week, then based
on NCCR's estimate, a manager would spend from 6 minutes to 18 minutes
monitoring for each hour of overtime worked by that employee. The
Department believes this estimate is unrealistically high. We also note
that commenters did not submit any data supporting their 15 minute and
25 minute estimates. Furthermore, we recognize that employers routinely
apply efficiencies in their operations, and see no reason why they will
not do so with regard to scheduling as well.
Wage Rate
The Chamber recommended that the Department use the mean wage
rather than the median to calculate hourly managerial costs, and also
asserted that
[[Page 32478]]
the wage should include all loaded overhead cost. However, the mean and
median wages for managers are very similar in the CPS data ($32.71
versus $29.04, respectively), so using the mean wage will not result in
substantially different estimated costs. Furthermore, if the
distribution of wages is skewed (as demonstrated here by a mean wage
larger than the median wage), the median value is more representative
of the wage most firms will pay. The Department does not believe it is
appropriate to use all overhead costs in estimating a marginal cost
increase because the relevant cost is the marginal value of the cost of
labor, which is much smaller than the loaded overhead cost. Most
overhead costs are largely fixed and unaffected if an employee works an
incremental hour. For example, accounting and administrative staff are
unlikely to work more time; building rent, heat and electricity are
unlikely to change if a supervisor or human resource staff person works
an incremental hour. However, acknowledging that there might be some
overhead costs, we include a sensitivity analysis providing an upper
bound cost estimate.\170\
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\170\ As a sensitivity analysis of results, we calculate the
impact of more significant overhead costs by including an overhead
rate of 17 percent. This rate has been used by the EPA in its final
rules (see for example, EPA Electronic Reporting under the Toxic
Substances Control Act Final Rule, Supporting & Related Material),
and is based upon a Chemical Manufacturers Association study. An
overhead rate from chemical manufacturing may not be appropriate for
all industries, so there may be substantial uncertainty concerning
the estimates based on this illustrative example. Using an overhead
rate of 17 percent would increase total costs (including regulatory
familiarization costs, adjustment costs, and managerial costs) by
from $677.9 million in Year 1 to $757.0 million, or 11.7 percent.
For the reasons stated above, the Department believes this estimate
overestimates the additional costs arising from overhead costs while
recognizing that there is not one uniform approach to estimating the
marginal cost of labor.
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Number of Affected Workers
The Chamber also asserted that managerial costs should apply to all
affected workers whose status changes, not just those who regularly
work overtime, because ``even those who usually work only 40 hours will
require additional management schedule monitoring to ensure that their
hours do not go higher.'' The Department believes that although some
companies may closely monitor hours for workers who usually do not work
overtime, many companies do not. Many companies simply prohibit
overtime without express approval and/or assign workers to a set weekly
schedule of hours; in such firms monitoring costs for these newly
nonexempt workers who usually do not work overtime should be
negligible. Furthermore, without additional information, it is
impossible to determine the prevalence of the more strenuous form of
managerial oversight described by the Chamber. However, we did increase
the number of workers for whom managerial costs are estimated to
include more occasional overtime workers, as discussed above.
5. Other Potential Costs
In addition to the costs discussed above, there may be additional
costs that have not been quantified. In the NPRM we identified these
potential costs to include reduced profits and hiring costs. See 80 FR
38578-80. Commenters addressed a variety of other potential costs.
Reduced Scheduling Flexibility
Some commenters, such as the ASAE, Thombert, Inc., Applied
Measurement Professionals; and Alaska USA Federal Credit Union,
asserted that exempt workers enjoy more scheduling flexibility claiming
that their hours generally are not monitored, and thus this rulemaking
will impose costs on newly overtime-eligible workers by (for example)
limiting their ability to adjust their schedule to meet personal and
family obligations. Other commenters suggested that the rulemaking
would impose costs on employers because they will lose flexibility to
schedule employees. For example, TRANSITIONS for the Developmentally
Disabled commented that ``[h]aving managers that can work those
urgencies and emergencies, then giving them time off later to make up
for those extra hours, helps our managers manage the business without
us paying expensive overtime or having someone without managerial
skills deal with those situations'' (emphasis in comment).
The Final Rule does not necessitate that employers reduce
scheduling flexibility. Employers can continue to offer flexible
schedules and require workers to monitor their own hours and to follow
the employers' timekeeping rules. Additionally, some exempt workers
already monitor their hours for billing purposes. For these reasons,
and because there is little data or literature on these costs, the
Department does not quantify potential costs regarding scheduling
flexibility to either employees or employers. Moreover, the limited
literature available suggests that if there is a reduction in
flexibility for employees, it would not be as large as commenters
suggested. A study by Lonnie Golden,\171\ referenced by the National
Employment Law Project (NELP), found using data from the General Social
Survey (GSS) that ``[i]n general, salaried workers at the lower (less
than $50,000) income levels don't have noticeably greater levels of
work flexibility that they would `lose' if they became more like their
hourly counterparts.''
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\171\ Golden, L. (2014). Flexibility and Overtime Among Hourly
and Salaried Workers. Economic Policy Institute.
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Reclassification to Overtime Eligible Status
Some commenters asserted that the rulemaking will negatively affect
the morale of employees reclassified as overtime eligible.\172\ For
example, WorldatWork stated that 79 percent of survey respondents said
the proposed rule would have a negative effect on the reclassified
employees' morale, as exemption classification is a perceived measure
of status desired by employees, and Kimball Midwest similarly commented
that ``many of the young professionals that we employ would view being
reclassified to nonexempt as a demotion and an insult to their
professional and social status in the workplace.'' The Department
believes that for most employees their feelings of importance and worth
come not from their FLSA exemption status, but from the increased pay,
flexibility, fringe benefits, and job responsibilities that
traditionally have accompanied exempt status, and that these factors
are not incompatible with overtime eligibility.
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\172\ The Department notes that to the extent that such negative
effects are attributable to the employer converting the employee to
hourly pay status, employers can avoid this consequence by
continuing to pay overtime-eligible employees a salary and pay
overtime when the employee works more than 40 hours in the workweek.
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However, if the worker does prefer to be salaried rather than
hourly, then this change may impact the worker. The likelihood of this
impact occurring depends on the costs to employers and benefits to
employees of being salaried. Research has shown that salaried workers
(who are not synonymous with exempt workers, but whose status is
correlated with exempt status) are more likely than hourly workers to
receive benefits such as paid vacation time and health insurance,\173\
are more satisfied with their benefits,\174\ and that when employer
demand for labor decreases,
[[Page 32479]]
hourly workers tend to see their hours cut before salaried workers,
making earnings for hourly workers less predictable.\175\ However, this
literature generally does not control for differences between salaried
and hourly workers such as education, job title, or earnings;
therefore, this correlation is not necessarily attributable to hourly
status.
---------------------------------------------------------------------------
\173\ Lambert, S. J. (2007). Making a Difference for Hourly
Employees. In A. Booth, & A. C. Crouter, Work-Life Policies that
Make a Real Difference for Individuals, Families, and Communities.
Washington, DC: Urban Institute Press.
\174\ Balkin, D. B., & Griffeth, R. W. (1993). The Determinants
of Employee Benefits Satisfaction. Journal of Business and
Psychology, 7(3), 323-339.
\175\ Lambert, S. J., & Henly, J. R. (2009). Scheduling in
Hourly Jobs: Promising Practices for the Twenty-First Century
Economy. The Mobility Agenda. Lambert, S. J. (2007). Making a
Difference for Hourly Employees. In A. Booth, & A. C. Crouter, Work-
Life Policies that Make a Real Difference for Individuals, Families,
and Communities. Washington, DC: Urban Institute Press.
---------------------------------------------------------------------------
Some evidence suggests that it is more costly for the employer to
employ a salaried worker than an hourly worker. If true, employers may
choose to accompany the change in exemption status with a change to the
employee's method of pay, from salary to an hourly basis, since there
is no longer as great an incentive to classify the worker as
salaried.\176\
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\176\ There is not requirement that overtime eligible employees
be paid on an hourly basis. Paying such employees a salary is
appropriate so long as the employee receives overtime pay for
working more than 40 hours in the workweek. See Sec. Sec.
778.113-.114.
---------------------------------------------------------------------------
Jackson Lewis asserted that the Department did not adequately
consider other costs associated with reclassifying employees from
exempt to nonexempt: ``This is not just a mere matter of accounting for
potential changes in direct wage costs. Exempt and non-exempt employees
function very differently in the workplace. Reclassifying employees
imposes costs with respect to re-engineering roles, determining new
performance metrics, and devising compensation programs that drive the
desired behaviors consistent with an obligation to pay a wage premium
after forty hours in a workweek.'' We believe these considerations are
adequately accounted for in the Department's adjustment cost estimate,
which we increased by 15 minutes from 60 to 75 minutes for each
affected worker.
Earnings Predictability
Some commenters asserted that employers will convert newly
nonexempt employees to hourly pay and that these employees will lose
the earnings predictability of a guaranteed salary. See, e.g., AH&LA;
Island Hospitality Management; NCCR; NRF. These commenters asserted
that receipt of a guaranteed minimum salary provides peace of mind to
employees. These comments appear to reflect a common misperception
among employers that overtime-eligible employees must be paid on an
hourly basis. Overtime-eligible employees may continue to be paid a
salary, as long as that salary is equivalent to a base wage at least
equal to the minimum wage rate for every hour worked, and the employee
receives a 50 percent premium on that base wage for any overtime hours
each week. Sec. Sec. 778.113-.114.
Reduced Opportunities for Training and Advancement
Some commenters stated that the rulemaking will reduce training and
promotional opportunities. For example, ASAE commented that employers
would not permit newly overtime eligible employees to attend
conferences and annual meetings. In response to these comments, the
Department notes that if an employer believes that training
opportunities are sufficiently important, it can ensure employees
attend the trainings during their 40-hour workweek, or pay the overtime
premium where training attendance causes the employee to work over 40
hours in a workweek. Given this, and because there is no data and
literature to quantify any potential costs to workers, we decline to do
so in this analysis.
Reduced Productivity
Some commenters expressed concern that the automatic updating
provisions of the rule may reduce productivity. For example, the
Michael Best & Friedrich law firm commented that many employees will
``assume they could perform at the same level, or do the bare minimum,
and still receive an automatic pay increase,'' and this ``unmotivated
workforce will lead to lesser productivity.'' This rulemaking does not
require any employer to provide an automatic pay raise when the
standard salary level increases. As always, employers have the ability
to determine which employees deserve raises, and the size of that
raise, and to decide how to handle employees whose work is
unsatisfactory. Additionally, the Final Rule has been modified so that
updating will occur every three years, not annually, which should
lessen commenters' concerns on this issue. Furthermore, as discussed in
section VI.D.vii., the Department believes that in some instances
employers may in fact experience increased worker productivity due to
factors including efficiency wages, improved worker health, and a
reduction in turnover.
Quality of Services
Some commenters expressed concern that the rulemaking, by
restricting work hours, will negatively impact the quality of public
services provided by local governments, see, e.g., City of Galax;
disability services providers, see, e.g., American Network of Community
Options and Resources (ANCOR); health care providers, see, e.g.,
Lutheran Services in America; education providers, see, e.g., La Salle
Catholic College Preparatory, and others. The Indian River Schools
commented that the ``only way a school system can adjust for this
change is to reduce services to students, given that our industry
operates with low-overhead.''
The Department believes the impact of the rule on public services
will be small. The Department acknowledges that some employees who work
overtime providing public services may see a reduction in hours as an
effect of the rulemaking. However, if the services are in demand the
Department believes additional workers may be hired, as funding
availability allows, to make up some of these hours, and productivity
increases, as discussed in section VI.D.vii., may offset some reduction
in services. Furthermore, the Department notes that school systems
would largely be unaffected by the rulemaking: Teachers and academic
administrative personnel are ``named occupations'' and thus do not have
to pass the salary level test to remain exempt. In addition, the
Department expects many employers will adjust base wages downward to
some degree so that even after paying the overtime premium, overall pay
and hours of work for many employees will be relatively minimally
impacted, as indicated in the comments of many employers.
Increased Prices
Some commenters expressed concern that increased labor costs will
be passed along to consumers in the form of higher prices. See, e.g.,
National Association of Home Builders (NAHB) (stating that of the 33
percent of members surveyed who predicted some change, 44 percent
indicated that the proposal ``would result in higher home prices for
consumers''); SnowSports Industries of America. NRF stated that many of
its members noted that raising prices would result in a loss of sales.
The Department does anticipate that, in some cases, part of the
additional labor costs may be offset by higher prices of goods and
services. However, because costs and transfers are on average small
relative to payroll and revenues, the Department does not
[[Page 32480]]
expect this rulemaking to have a significant effect on prices. The
Department projects that, on average, costs and transfers make up less
than 0.03 percent of payroll and less than 0.01 percent of revenues,
although for specific industries and firms this percentage may be
larger. Therefore, the Department expects that any potential change in
prices will be modest. Further, any significant price increases, would
generally not represent a separate category of impacts relative to
those estimated in the RIA; rather, price increases (where they occur)
are the channel through which consumers, rather than employers or
employees, bear rule-induced costs (including transfers).\177\
---------------------------------------------------------------------------
\177\ The deadweight loss associated with price increases is
appropriately categorized as a cost, but it is discussed in detail
in in section VI.D.vi because the methodology whereby it is
estimated is more clearly explained as a follow-up to the transfers
methodology.
---------------------------------------------------------------------------
Foreign Competition
Some commenters expressed concern that the rulemaking will hurt the
United States' ability to compete in the international market. See,
e.g, Jackson Lewis; NACCO Industries; National Association of
Manufacturers; National Association of Wholesale Distributors;
Precision Machined Products Association. The Department does not
believe this is a serious concern due to the small ratio of employer
costs and transfers to revenues.
Substitution of Capital
Some commenters, such as the National Parking Association and the
National Beer Wholesalers Association, asserted that, by increasing the
marginal cost of labor, the rule will lead companies to automate their
business operations and substitute capital for labor. The Department
believes that it is unlikely that employees performing jobs that can be
easily automated will satisfy the duties test, and that any such effect
would be negligible due to the small ratio of employer costs and
transfer payments to operating revenue.
Wage Compression and Spillover Effects
Several commenters stated that employers may increase the wages of
workers currently paid just above the new threshold to maintain a
distribution of wages, and some asserted that the Department failed to
account for this effort to avoid salary compression in our economic
analysis. See, e.g., Cornerstone Credit Union League; First Premier
Bank; HMR Acquisition Company; International Franchise Association;
PPWO; Seyfarth Shaw law firm; Tulsa Regional Chamber. The Department
did not consider salary compression in the NPRM because data are not
available to estimate this effect. For the same reason, we decline to
consider this cost in the analysis accompanying this Final Rule.
Substitution of Part-Time Jobs in Place of Full-Time Jobs
Some commenters stated that firms will reduce the number of full-
time positions and replace them with part-time positions to limit
overtime payments. See, e.g., Associated General Contractors of America
(AGC); National Newspaper Association; SnowSports Industries of
America. These commenters assume that rather than cutting the hours of
a worker who works 60 hours per week to 40 hours and hiring a part-time
employee to work the remaining 20 hours (which would potentially reduce
unemployment), employers will create part-time positions at the expense
of full-time employment.
As an initial matter, an employer will have an incentive to make
these adjustments only if the cost of paying overtime is greater than
the costs associated with hiring another worker. Further, although the
Department acknowledges the possibility that firms may reduce the
number of full-time positions and replace them with part-time
positions, on net the Department believes the benefits of additional
jobs (i.e., external margins) will outweigh any detriment of reduction
in hours for current employees (i.e., internal margins), although the
Department cannot quantify this effect. Due to data limitations the
Department has not estimated transfers between workers. We note,
however, that most of the estimates submitted by commenters of large
costs, transfers, and employment impacts rely implicitly on the
assumption that employers make no adjustment to the rulemaking except
to pay the overtime premium. This lack of employer response is
contradicted by quantitative analysis of employer behavior (see
Barkume,\178\ for example), and by the employer comments on this
rulemaking. Employers will adjust to the rule by adjusting base pay for
newly nonexempt employees, as well as in other ways. After accounting
for employer adjustments, the costs and transfers resulting from the
rule are small relative to payroll and revenues, as are the projected
reductions in employee hours, and the likelihood of large scale impacts
on employment appears to be small.
---------------------------------------------------------------------------
\178\ Barkume, A. (2010). The Structure of Labor Costs with
Overtime Work in U.S. Jobs. Industrial and Labor Relations Review,
64(1), 128-142.
---------------------------------------------------------------------------
Conversely, other commenters, such as the International Food
Service Distributors Association, expressed concern that employers
would eliminate part-time positions ``where the employees value the
flexibility.'' See also CUPA-HR. The Department believes it is unlikely
that an employer will eliminate part-time positions simply because the
workers become eligible for overtime, as an employer will not have to
pay workers employed for less than 40 hours per week the overtime
premium even if they are newly entitled to overtime pay.
Finally, the Home Loan and Investment Company and other commenters
also asserted that some workers who currently hold only one job will
need to take a second job to supplement their now reduced hours. This
would reduce workers' utility since juggling two jobs is more difficult
than holding one job, even if the total hours are the same. To address
this concern, the Department looked at the effect of the 2004
rulemaking on the probability of multiple job holding. The 2004
rulemaking increased the salary level required to be eligible for
exemption from $250 per week (short test salary level) to $455
(standard test salary level).\179\ To estimate the effect of this
update on the share of full-time, white collar workers holding multiple
jobs, the Department conducted a difference-in-differences (DD)
analysis. This analysis allows the identification of any potential
regulatory impact, while controlling for time trends and a broad range
of other relevant factors (education, occupation, industry, geographic
location, etc.). The Department compared January-March 2004 to January-
March 2005 \180\ and compared workers earning between $250 and $455 and
those earning at least $455 but less than $600. The Department found no
statistically significant change in workers' probability of holding
multiple jobs before and after the 2004 Final Rule took effect.\181\
However, a caveat should be noted about interpreting this result as an
indication that the Final Rule will not lead to an increase in the
holding of multiple jobs. This rule is estimated to
[[Page 32481]]
affect approximately three times as many workers as the 2004 rule (for
which the Department estimated 1.3 million affected workers), and
factors that could not be controlled for in the analysis of the 2004
rule may lead to a different outcome based on this rule.
---------------------------------------------------------------------------
\179\ The 2004 Final Rule increased the salary level from the
previous long test level of $155 per week (executive and
administrative exemptions) or $170 per week (professional exemption)
to $455 per week. For purposes of this analysis, the Department
compared the increase from the short test salary level ($250 per
week) since the long test was no longer operative due to increases
in the minimum wage.
\180\ The 2004 Final Rule was published April 23, 2004 and went
into effect August 23, 2004.
\181\ The difference-in-differences model used to examine
whether the share of workers holding multiple jobs increased as a
result of the 2004 rule can be written as
[GRAPHIC] [TIFF OMITTED] TR23MY16.004
where Mi is equal to 1 if worker i is has more than one
job and 0 otherwise, Ti is equal to 1 if worker i earns
at least $250 but less than $455 and 0 if he earns between $455 and
$600, Pi is equal to 1 for the post-change period (Jan.-
Mar. 2005) and 0 for the pre-change period (Jan.-Mar. 2004), and
Ci is a set of worker-specific controls (age, education,
gender, race, ethnicity, occupation, industry, state of residence,
working overtime, whether paid hourly or salaried). The model was
estimated using a probit regression. The relevant marginal effect is
-0.009 (i.e., the amount the likelihood of multiple job holding
changes post rulemaking for workers earning between $250 and $455
per week relative to the change for workers earning between $455 and
$600), with a standard deviation of 0.006. Thus, while the point
estimate shows a decrease in the probability of multiple job holding
for affected workers after the 2004 Final Rule took effect, the
finding is not statistically significant at conventional thresholds
for significance. The Department also used a difference-in-
difference-in-differences model to examine whether the share of
workers holding multiple jobs increased as a result of the
California's increase in the salary threshold from $540 to $640
between 2006 and 2008 and from $640 to $720 between 2014 and 2015.
That model can be written as
[GRAPHIC] [TIFF OMITTED] TR23MY16.005
where Mi is equal to 1 if worker i has multiple jobs and
0 otherwise, Ti is equal to 1 if worker i earns between
the old threshold and the new threshold and 0 if he earns just above
the new threshold, Pi is equal to 1 for the post-change
period and 0 for the pre-change period, Si is equal to 1
if worker i is in California and 0 if she is in other states where
the salary level was not increased, and Ci is the same
set of worker-specific controls used in the DD analysis. The model
was estimated using a probit regression. For the change between 2006
and 2008, the relevant marginal effect is -0.025 with a standard
deviation of 0.004, and for the change between 2014 and 2015, the
relevant marginal effect is 0.042 with a standard deviation of
0.018. Thus we observe a statistically significant (at conventional
thresholds) increase in the share of workers holding multiple jobs
in one period but a statistically significant (at conventional
thresholds) decrease in the other.
Reduced Profits
Some commenters, including an HR consultant, a small business
owner, and a commenter from the restaurant industry, expressed concern
that establishments with small profit margins may lose money or go out
of business. The increase in workers' earnings resulting from the
revised salary level is a transfer of income from firms to workers, not
a cost, and is thus neutral concerning its primary effect on welfare.
However, there are potential secondary effects (both costs and
benefits) of the transfer due to the potential difference in the
marginal utility of income and the marginal propensity to consume or
save between workers and business owners. Thus, the Department
acknowledges that profits may be reduced due to increased employer
costs and transfer payments as a result of this rule, although some of
these costs and transfers may be offset by making payroll adjustments
or the profit consequences of costs and transfers partially mitigated
through increased prices.\182\ The Department notes that firms have a
broad array of approaches for adjusting to the rulemaking: Firms that
face robust demand may be able to increase product prices and may make
smaller adjustments to base wages or overtime hours; firms that have
little ability to raise prices may have to make more substantial
changes to wages or other variables. Further, because costs and
transfers are on average small relative to payroll and revenues, the
Department does not expect this rulemaking to have a significant effect
on profits. Additionally, increased payroll may lead to increased
consumer spending which may translate into higher profits, offsetting
part of the initial reduction in profits. Two business owners who
commented separately in support of the Department's proposal cited an
increase in sales as a likely consequence of this rulemaking.
---------------------------------------------------------------------------
\182\ As shown below, because costs and transfers generally
compose less than one percent of revenues, the Department expects
any such price increases to be minor.
---------------------------------------------------------------------------
Hiring Costs
One of Congress' goals in enacting the FLSA in 1938 was to spread
employment to a greater number of workers by effectively raising the
wages of employees working more than 40 hours per week. To the extent
that firms respond to an update to the salary level test by reducing
overtime, they may do so by spreading hours to other workers,
including: Current workers employed for less than 40 hours per week by
that employer, current workers who retain their exempt status, and
newly hired workers. If new workers are hired to absorb these
transferred hours, then the associated hiring costs are a cost of this
Final Rule.
iv. Transfers
1. Overview
Transfer payments occur when income is redistributed from one party
to another. The Department has quantified two possible transfers from
employers to employees likely to result from this update to the salary
level tests: (1) Transfers to ensure compliance with the FLSA minimum
wage provision; and (2) transfers to ensure compliance with the FLSA
overtime pay provision. Transfers in Year 1 to workers from employers
due to the minimum wage provision were estimated to be $34.3 million.
The increase in the HCE compensation level does not affect minimum wage
transfers because workers eligible for the HCE exemption earn well
above the minimum wage. Transfers to employees from employers due to
the overtime pay provision were estimated to be $1,250.8 million,
$1,152.3 million of which is from the increased standard salary level,
while the remainder is attributable to the increased HCE compensation
level.
[[Page 32482]]
Total Year 1 transfers were estimated to be $1,285.2 million (Table
17).
Table 17--Summary of Year 1 Regulatory Transfers
[Millions]
----------------------------------------------------------------------------------------------------------------
HCE
Transfer from employers to workers Standard Compensation Total
salary level level
----------------------------------------------------------------------------------------------------------------
Due to minimum wage............................................. $34.3 $0.0 $34.3
Due to overtime pay............................................. 1,152.3 98.5 1,250.8
-----------------------------------------------
Total transfers............................................. 1,186.6 98.5 1,285.2
----------------------------------------------------------------------------------------------------------------
Because the overtime premium depends on the base wage, the
estimates of minimum wage transfers and overtime transfers are linked.
This can be considered a two-step approach. The Department first
identified affected EAP workers with an implicit regular hourly wage
lower than the minimum wage, and then calculated the wage increase
necessary to reach the minimum wage. The implicit regular rate of pay
is calculated as usual weekly earnings divided by usual weekly hours
worked. For those employees whose implicit regular rate of pay is below
the minimum wage, the overtime premium was based on the minimum wage as
the regular rate of pay.
2. Transfers Due to the Minimum Wage Provision
Transfers from employers to workers to ensure compliance with the
higher of the federal or applicable state minimum wage are small
compared to the transfers attributed to overtime pay and are only
associated with the change in the standard salary level. For purposes
of this analysis, the hourly rate of pay is calculated as usual weekly
earnings divided by usual weekly hours worked. In addition to earning
below the federal or state minimum wage, this set of workers also works
many hours per week. To demonstrate, in order to earn less than the
federal minimum wage of $7.25 per hour, but at least $455 per week,
these workers must regularly work significant amounts of overtime
(since $455/$7.25 = 62.8 hours). The applicable minimum wage is the
higher of the federal minimum wage and the state minimum wage as of
January 2016. Most affected EAP workers already receive at least the
minimum wage; an estimated 11,200 affected EAP workers (less than 0.3
percent of all affected EAP workers) currently earn an implicit hourly
rate of pay less than the minimum wage. The Department estimated
transfers due to payment of the minimum wage by calculating the change
in earnings if wages rose to the minimum wage for workers who become
nonexempt and thus would have to be paid at least the minimum
wage.\183\
---------------------------------------------------------------------------
\183\ Because these workers' hourly wages will be set at the
minimum wage after this Final Rule, their employers will not be able
to adjust their wages downward to offset part of the cost of paying
the overtime pay premium (which will be discussed in the following
section). Therefore, these workers will generally receive larger
transfers attributed to the overtime pay provision than other
workers.
---------------------------------------------------------------------------
In response to an increase in the regular rate of pay to the
minimum wage, employers may reduce the workers' hours, which must be
considered when estimating transfers attributed to payment of the
minimum wage to newly overtime-eligible workers. In theory, because the
quantity of labor hours demanded is inversely related to wages, a
higher mandated wage could result in fewer hours of labor demanded.
However, the weight of the empirical evidence finds that increases in
the minimum wage have caused little or no significant job loss.\184\
Thus, in the case of this regulation, the Department believes that any
disemployment effect due to the minimum wage provision would be
negligible. This is partially due to the small number of workers
affected by this provision. The Department estimates the potential
disemployment effects (i.e., the estimated reduction in hours) of the
transfer attributed to the minimum wage by multiplying the percent
change in the regular rate of pay by a labor demand elasticity of -
0.075.\185\
---------------------------------------------------------------------------
\184\ Belman, D., and P.J. Wolfson (2014). What Does the Minimum
Wage Do? Kalamazoo, MI: W.E. Upjohn Institute for Employment
Research. Dube, A., T.W. Lester, and M. Reich. (2010). Minimum Wage
Effects Across State Borders: Estimates Using Contiguous Counties.
The Review of Economics and Statistics, 92(4), 945-964. Schmitt, J.
(2013). Why Does the Minimum Wage Have No Discernible Effect on
Employment? Center for Economic and Policy Research.
\185\ This is based on the estimated impact of a change in the
minimum wage from $7.25 to $9.00 per hour on the employment of
teenagers from the Congressional Budget Office. (2014). The Effects
of a Minimum Wage Increase on Employment and Family Income. While an
elasticity estimate for adult workers would be more appropriate, the
report stated that the elasticity for adults was ``about one-third
of the elasticity'' for teenagers, without providing a specific
value. In addition, the literature for adults is more limited. The
size of the estimated reduction in hours is thus likely to be an
upper bound.
---------------------------------------------------------------------------
At the new standard salary level ($913 per week), the Department
estimates that 11,200 affected EAP workers will on average see an
hourly wage increase of $0.91, work 0.7 fewer hours per week, and
receive an increase in weekly earnings of $59.10 as a result of
coverage by the minimum wage provisions (Table 18). The total change in
weekly earnings due to the payment of the minimum wage was estimated to
be $660,300 per week ($59.10 x 11,200) or $34.3 million in Year 1.
Table 18--Minimum Wage Only: Mean Hourly Wages, Usual Overtime Hours, and Weekly Earnings for Affected EAP
Workers, FY2017
----------------------------------------------------------------------------------------------------------------
Total weekly
Hourly wage Usual weekly Usual weekly transfer
\a\ hours earnings (1,000s)
----------------------------------------------------------------------------------------------------------------
Before Final Rule............................... $8.13 69.3 $551.2 ..............
After Final Rule................................ 9.04 68.6 610.3 ..............
[[Page 32483]]
Change.......................................... 0.91 -0.7 59.1 $660.3
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ The applicable minimum wage is the higher of the federal minimum wage and the state minimum wage.
Modeling employer adjustments for these workers is a two-step
process. First, employers adjust wages and hours to meet the minimum
wage requirement, as described here. Then, these workers' hours will be
further adjusted in response to the requirement to pay the overtime
premium, which is discussed in the following section. The transfers
presented here only apply to the minimum wage provision. However,
minimum wage transfers impact overtime transfers because the overtime
premium is calculated based on the minimum wage, not the worker's
original wage. Thus, the two are not entirely separable.
3. Transfers Due to the Overtime Pay Provision
Introduction
The Final Rule will also transfer income to affected workers who
work in excess of 40 hours per week. Requiring an overtime premium
increases the marginal cost of labor, which employers will likely try
to offset by adjusting wages or hours. Thus, the size of the transfers
due to the overtime pay provision will depend largely on how employers
respond to the updated salary levels. How employers respond and the
ensuing changes in employment conditions will depend on the demand for
labor, current wages, employer and employee bargaining power, and other
factors. Employers may respond by: (1) Paying the required overtime
premium to affected workers for the same number of overtime hours at
the same implicit regular rate of pay; (2) reducing overtime hours and
potentially transferring some of these hours to other workers; (3)
increasing workers' salaries to the updated salary or compensation
level; (4) reducing the regular rate of pay for workers working
overtime; or (5) using some combination of these responses. How
employers will respond depends on many factors, including the relative
costs of each of these alternatives; in turn, the relative costs of
each of these alternatives are a function of workers' earnings and
hours worked.
The simplest approach to estimating these transfer payments would
be to multiply an employee's regular rate of pay (after compliance with
the minimum wage) by 1.5 for all overtime hours; this is referred to as
the ``full overtime premium'' model.\186\ However, due to expected wage
and hour adjustments by employers, this would likely overestimate the
size of the transfer. Therefore, the Department used a methodology that
allows for employer adjustments, such as changes in the regular rate of
pay or hours worked. The size of these adjustments is likely to vary
depending on the affected worker's salary and work patterns. To model
employer responses, the Department used a method that reflects the
average response among all employers for all affected workers. However,
individual employer responses will vary.
---------------------------------------------------------------------------
\186\ The implicit regular rate of pay is calculated as usual
weekly earnings divided by usual weekly hours worked. For example,
the regular rate of pay for an employee previously ineligible for
overtime whose usual weekly earnings was $600 and usual weekly hours
was 50 would be $12 per hour. Under the full overtime premium model,
this employee would receive $660 ((40 hours x $12) + (10 hours x $12
x 1.5)).
---------------------------------------------------------------------------
Literature on Employer Adjustments
Two conceptual models are useful for thinking about how employers
may respond to reclassifying certain employees as overtime eligible:
The ``full overtime premium'' model and the ``employment contract''
model.\187\ These models make different assumptions about the demand
for overtime hours and the structure of the employment agreement which
result in different implications for predicting employer responses.
---------------------------------------------------------------------------
\187\ The employment contract model is also known as the fixed-
job model. See Trejo, S.J. (1991). The Effects of Overtime Pay
Regulation on Worker Compensation. American Economic Review, 81(4),
719-740, and Barkume, A. (2010). The Structure of Labor Costs with
Overtime Work in U.S. Jobs. Industrial and Labor Relations Review,
64(1), 128-142.
---------------------------------------------------------------------------
The full overtime premium model is based on what we will refer to
as the ``labor demand'' model of determining wage and hour conditions.
In the labor demand model, employers and employees negotiate fixed
hourly wages and then subsequently negotiate hours worked, rather than
determining both hours and pay simultaneously. This model assumes
employees are aware of the hourly wage rate they negotiated and may be
more reluctant to accept downward adjustments. The labor demand model
would apply if employees had a contract to be paid at an hourly rate,
meaning that employers could not reduce the regular rate of pay in
response to the requirement to pay a 50 percent premium on hours worked
beyond 40 in a week. However, the increase in the marginal cost of
labor would lead to a reduction in the hours of labor demanded as long
as labor demand is not completely inelastic. The full overtime premium
model is a special case of the labor demand model in which the demand
for labor is completely inelastic, that is employers will demand the
same number of hours worked regardless of the cost.
In the employment contract model, employers and employees negotiate
total pay and hours simultaneously, rather than negotiating a fixed
hourly wage and then determining hours. Under this model, when
employers are required to pay employees an overtime premium, they
adjust the employees' implicit hourly rate of pay downward so that when
the overtime premium is paid total employee earnings (and thus total
employer cost) remain constant, along with the employees' hours. The
employer does not experience a change in cost and the employee does not
experience a change in earnings or hours. The employment contract model
would hold if the workers who are reclassified as overtime protected
had an employment agreement specifying set total earnings and hours of
work.
The employment contract model tends to be more applicable when
overtime hours are predictable, while the labor demand model is
generally more applicable to situations where the need for overtime is
unanticipated (for example, where there are unforeseen, short-term
increases in demand). However, the employment contract model may not
fully hold even for workers who work predictable overtime due to market
imperfections, employer incentives, or workers' bargaining power. Four
examples are provided.
[[Page 32484]]
Employers are constrained because they cannot reduce an
employee's implicit hourly rate of pay below the minimum wage. If the
employee's implicit hourly rate of pay before the change is at or below
the minimum wage, then employers will not be able to reduce the rate of
pay to offset the cost of paying the overtime premium.
Employees generally have some, albeit limited, bargaining
power which may prevent employers from reducing the employee's implicit
hourly rate of pay to fully offset increased costs.
Employers may be hesitant to reduce the employee's
implicit hourly rate of pay by the entire amount predicted by the
employment contract model because it may hurt employee morale and
consequently productivity.\188\
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\188\ For example: Bewley, T. (1999). Why Wages Don't Fall
During a Recession. Cambridge, MA: Harvard University Press. Brown,
C. & Medoff, J. (1989). The Employer Size Wage Effect. Quarterly
Journal of Economics, 97(5), 1027-1059. See also the literature on
implicit contracts in labor markets.
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Employers are often limited in their ability to pay
different regular rates of pay to different employees who perform the
same work and have the same qualifications because of fairness
concerns. In order to keep wages constant across employees and reduce
wages for overtime workers, employers would need to reduce the implicit
hourly rate of pay for employees who do not work overtime as well as
those who do work overtime. This would reduce total earnings for these
non-overtime employees (potentially causing retention problems,
productivity losses, and morale concerns).\189\
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\189\ For example: Fehr & Schmidt. (2007). ``A Theory of
Fairness Competition and Cooperation.'' Quarterly Journal of
Economics. Vol 97 No. 2 pp. 867-868. Milgram, Paul. (1988).
``Employment Contracts Influence Activities and Efficient
Organization Design.'' Journal of Political Economy, Vol. 96 No. 1
pp. 42-60.
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Therefore, the likely outcome will fall somewhere between the
conditions predicted by the full overtime premium and employment
contract models. For example, the implicit hourly rate of pay may fall,
but not all the way to the wage predicted by the employment contract
model, and overtime hours may fall but not be eliminated since the
implicit hourly rate of pay has fallen. The Department conducted a
literature review to evaluate how the market would adjust to a change
in the requirement to pay overtime.
Barkume (2010) and Trejo (1991) empirically tested for evidence of
these two competing models by measuring labor market responses to the
application of FLSA overtime pay regulations.\190\ Both concluded that
wages partially adjust toward the level consistent with the employment
contract model in response to the overtime pay provision.\191\ Barkume
found that employee wage rates were adjusted downward by 40 to 80
percent of the amount the employment contract model predicted,
depending on modeling assumptions. Earlier research had demonstrated
that in the absence of regulation some employers may voluntarily pay
workers some overtime premium to entice them to work longer hours, to
compensate workers for unexpected changes in their schedules, or as a
result of collective bargaining.\192\ Thus Barkume assumed that workers
would receive an average voluntary overtime pay premium of 28 percent
in the absence of an overtime pay regulation. Including this voluntary
overtime pay from employers, he estimated that in response to overtime
pay regulation, the wage adjusted downward by 80 percent of the amount
that would occur with the employment contract model. Conversely, when
Barkume assumed workers would receive no voluntary overtime pay premium
in the absence of an overtime pay regulation, wages adjusted downward
40 percent of the amount the employment contract model
predicted.193 194 However, while it seemed reasonable that
some premium was paid for overtime in the absence of regulation,
Barkume's assumption of a 28 percent initial overtime premium is likely
too high for the salaried workers potentially affected by a change in
the salary and compensation level requirements for the EAP
exemptions.\195\
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\190\ Barkume, A. (2010). The Structure of Labor Costs with
Overtime Work in U.S. Jobs. Industrial and Labor Relations Review,
64(1), 128-142. Trejo, S.J. (1991). The Effects of Overtime Pay
Regulation on Worker Compensation. American Economic Review, 81(4),
719-740.
\191\ Since both papers were based on cross-sectional data,
findings were assumed to be at the final equilibrium wages. However,
studies showing wage contracts are likely to be stickier in the
short run than in the long run have limited applicability here since
this analysis deals exclusively with salaried workers seeing an
increase in their weekly wage while seeing a downward adjustment in
their implicit hourly wage rate, and they may be less aware of their
implicit hourly wage rate. The Department has modeled a sticky
adjustment process by assuming the wage elasticity of demand for
labor is smaller in Year 1 than in subsequent years.
\192\ Barzel, Y. (1973). The Determination of Daily Hours and
Wages. The Quarterly Journal of Economics, 87(2), 220-238
demonstrated that modest fluctuations in labor demand could justify
substantial overtime premiums in the employment contract model.
Hart, R.A. and Yue, M. (2000). Why Do Firms Pay an Overtime Premium?
IZA Discussion Paper No. 163, showed that establishing an overtime
premium in an employment contract can reduce inefficiencies.
\193\ Barkume's estimates are consistent with Trejo's 1991
finding that the wage adjustment when there is no overtime premium
was only about 40 percent of the full employment contract model
adjustment. Trejo's estimates range from 25 percent to 49 percent
and average 40 percent.
\194\ Consider a worker earning $500 and working 50 hours per
week. Assuming no overtime premium is paid the imputed hourly rate
of pay is $10. Assuming a 28 percent overtime premium, the hourly
rate of pay is $9.47 (($9.47 x 40 hours) + ($9.47 x 10 hours x
1.28)) = $500. If the hourly rate of pay was fully adjusted to the
employment contract model level when overtime pay is newly required,
the hourly rate of pay would be $9.09 (($9.09 x 40 hours) + ($9.09 x
10 hours x 1.5)) = $500. Forty percent of the adjustment from $10 to
$9.09 results in an adjusted regular rate of pay of $9.64. Eighty
percent of the adjustment from $9.47 to $9.09 results in an adjusted
hourly rate of pay of $9.17. The Department took the average of
these two adjusted wages to estimate that the resulting hourly rate
of pay would be $9.40.
\195\ Barkume (2010) based this assumption on the findings of
Bell, D. and Hart, R. (2003). Wages, Hours, and Overtime Premia:
Evidence from the British Labor Market. Industrial and Labor
Relations Review, 56(3), 470-480. This study used 1998 data on male,
non-managerial, full-time workers in Britain. British workers were
likely paid a larger voluntary overtime premium than American
workers because Britain did not have a required overtime pay
regulation and so collective bargaining played a larger role in
implementing overtime pay.
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Comments Regarding Transfers
The few commenters who tried to model employer responses generally
used or cited the same literature the Department used (in particular,
Barkume (2010) and Trejo (1991)). Susann Rohwedder and Jeffrey B.
Wenger conducted an analysis for RAND on the impacts of the rulemaking
and, like our analysis, found small effects on individual workers'
earnings and hours.\196\
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\196\ Rohwedder, S. and Wenger, J.B. (2015). The Fair Labor
Standards Act: Worker Misclassification and the Hours and Earnings
Effects of Expanded Coverage. RAND Labor and Population.
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Some organizations conducted surveys to evaluate how employers may
respond. Although these surveys may be helpful as background
information, they generally cannot be used in a quantitative analysis
due to issues such as insufficient sample sizes, missing sampling
methodology, and missing magnitudes. As an example of the last concern,
the American Association of Orthopaedic Executives (AAOE) conducted a
survey of their members and found ``19% of respondents indicated that
they would change the number of staff hours worked in order to avoid
paying overtime.'' The Department agrees firms will generally change
staffing hours and has included this in the quantitative analysis. The
modeling question is to what degree employers will adjust hours.
Despite the inability to incorporate these survey results into the
analysis,
[[Page 32485]]
they may be informative and select results are presented here.
The AAOE found ``18% [of members] indicated that they
would not change their current practice operations. 16% stated that
they would increase salaries to the new threshold. 11% would change the
affected employees to hourly employees, and 4% stated that they would
eliminate positions within their practice.'' This indicates employers
will use a variety of mechanisms to reduce transfer payments, as
discussed and modeled by the Department.
The 2015 WorldatWork survey found ``73% of respondents
stated they would have more nonexempt employees.''
Kansas Bankers Association compiled member banks' analyses
of the rule that found ``[o]verwhelmingly . . . the response was not to
increase the newly non-exempt salaries to continue to keep the position
as an exempt position. In fact, only 2 bank CEOs responded that they
would choose to do so. Rather, the overwhelming majority of bank CEOs
stated those employees would move to non-exempt status, and overtime
would be restricted or prohibited.''
The NAHB presented results from a member survey that found
33 percent of companies indicated a change in company policies, with
respect to construction supervisors, would occur. Among those firms,
``56% of respondents indicated that they would take steps to minimize
overtime, such as cut workers hours.''
ANCOR found ``[l]ess than a third of providers would be
able to increase the salary of full-time exempt workers to meet the
projected threshold.''
Society for Human Resource Management (SHRM) reported
that, according to its survey ``the most significant result identified
was the implementation of restrictive overtime policies leading to
potential reduction in employees working overtime, with 70 percent of
respondents indicating that would be a likely outcome.''
AGC reported its survey found ``74% of AGC-surveyed
construction contractors responded that they would likely reclassify
some or all of the impacted exempt workers to a non-exempt hourly
status at their current salaries. The survey results also show that:
Over 60% of respondents expect the proposed rule to result in the
institution of policies and practices to ensure that affected employees
do not work over 40 hours a week.''
International Public Management Association for Human
Resources (IMPA-HR) and the International Municipal Lawyers Association
reported from an IPMA-HR survey that ``[a]bout 60% said they would
convert currently exempt employees to non-exempt and pay them overtime
while the same amount would prohibit them from working more than 40
hours per week without approval. Only 1/3 would raise salaries to at
least $970 per week.''
National Association of Professional Insurance Agents
asked survey respondents with workers who would be converted to
nonexempt status and who work overtime whether they would decrease
overtime hours; 65 percent responded they would.
Some commenters stated that many employers will respond by reducing
hours and base wages more than the Department estimated. The National
Association of Manufacturers wrote:
While in the initial months following a reclassification, most
employees tend to come out about the same in terms of total work and
total compensation, the steady pressure of the overtime premium
tends to result in a gradual reduction of the employee's schedule.
The challenge for that employee is that the hourly rate does not
normally increase to offset this loss in hours. Instead, the
employer looks to give the work to other employees. The scaling back
of the employee's weekly working hours can take a significant toll
on the employee's earnings, especially given that the wages lost for
each hour of overtime eliminated are at premium rates. The net
economic effect of the Proposed Rule will be to take working hours
and pay away from employees currently classified as exempt and
redistribute those hours and pay to other employees.
Some commenters, including Jackson Lewis, the National RV Dealers
Association, and the Sheppard Mullin law firm, asserted that many
employers may follow the full employment contract model rather than the
partial employment contract model used by the Department in the
analysis. The Iowa Association of Community Providers wrote that ``[i]n
order to maintain current payroll budgets, the organizations will need
to lower the hourly wages of non-exempt employees, such that their
total annual compensation, including overtime payments, remains at the
prior year's level.'' The Construction Industry Round Table asserted
that ``empirical research generally supports the `fixed-job' model
rather than the `fixed-wage' model.''
Other commenters stated that overtime will be reduced significantly
more than the Department estimated in the NPRM. However, little data
was provided to support these claims, making them difficult to
incorporate into the analysis. For example, Audubon Area Community
Services believes that ``[b]ecause additional revenue is not an option,
our agency would have to reclassify all but 10 of our positions to non-
exempt with no overtime allowed by any staff.''
The Department's reading and analysis of the literature cited in
the rulemaking is that a result between the fixed-job model and the
fixed-wage model would occur and thus we modeled our results
accordingly. Specifically, based upon Barkume's findings regarding
employer responses and transfer payments, we believe the partial
employment contract model is most appropriate and consistent with the
literature. Therefore, we have not changed the analysis. Several
commenters commented on the literature we used to support using the
partial employment contract model. The Center for American Progress
expressed support for our use of Barkume's analysis and stated that
this would result in some transfer payments since employers cannot
fully adjust base wages. The Washington Center for Equitable Growth
noted the Department ``should make clear that under certain conditions
the fixed-wage model underlying [the Department's] analysis implies
that some workers will see an increase in hours. If these workers are
under-employed, the shift in the composition of those hours from over-
worked to under-worked employees will be a welfare-improving
consequence of the proposed rule.''
Identifying Types of Affected Workers
The Department identified four types of workers whose work
characteristics impact how employers were modeled to respond to the
changes in both the standard and HCE salary levels:
Type 1: Workers who do not work overtime.
Type 2: Workers who do not regularly work overtime but
occasionally work overtime.
Type 3: Workers who regularly work overtime.
Type 4: Workers who regularly work overtime. These workers
differ from the Type 3 workers because it is less expensive for the
employer to pay the updated salary level than pay overtime and incur
managerial costs for these workers.\197\
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\197\ It is possible that employers will increase the salaries
paid to some ``occasional'' overtime workers to maintain the
exemption for the worker, but the Department has no way of
identifying these workers.
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The Department began by identifying the number of workers in each
type. After modeling employer adjustments, transfer payments were then
estimated. Type 3 and 4 workers are identified as
[[Page 32486]]
those who regularly work overtime (CPS variable PEHRUSL1 greater than
40). These workers are divided between Type 3 and Type 4 depending on
whether their weekly earnings are raised to the updated EAP salary
level or they become nonexempt. Distinguishing Type 3 workers from Type
4 workers is a four step process. First we identify all workers who
regularly work overtime. Then we estimate each worker's weekly earnings
if they became nonexempt, to which we add weekly managerial costs for
each affected worker of $3.53 ($42.31 per hour x (5 minutes/60
minutes)). Lastly, we identify as Type 4 those workers whose expected
nonexempt earnings plus weekly managerial costs exceeds the updated
standard salary level; those whose expected nonexempt earnings plus
weekly managerial costs are less than the new standard salary level are
classified as Type 3 workers. The Department assumes that firms will
include incremental managerial costs in their determination of whether
to treat an affected employee as a Type 3 or Type 4 worker because
those costs are only incurred if the employee is a Type 3 worker. Thus,
it is appropriate to determine if the additional earnings plus the
additional managerial costs for an affected worker exceed the revised
salary level. In the NPRM managerial costs were not included in the
determination of whether a worker is a Type 3 or Type 4 worker.
Therefore, in this Final Rule there are somewhat more Type 4 workers
than the NPRM methodology would yield.
Identifying Type 2 workers involves two steps. First, using CPS
MORG data, the Department identified those who do not usually work
overtime but did work overtime in the survey week (the week referred to
in the CPS questionnaire, variable PEHRACT1 greater than 40). These
workers represent those who occasionally work overtime and happened to
work overtime in that specific week. The survey (or reference) week is
always the pay period that includes the 12th day of the month and
contains responses for all twelve months. In a different week the
identity of workers who work overtime might differ, but the number
working overtime and the hours of overtime worked are similar because
the survey week is representative of occasional overtime patterns.
The second step for identifying Type 2 workers in the Final Rule
differs from the methodology used in the NPRM. In the NPRM, we used
only the first step described above to identify Type 2 workers. Those
who did not regularly work overtime and did not work overtime in the
survey week were classified as Type 1 workers. As previously discussed,
commenters expressed concerns that the Department underestimated the
number of workers who will experience changes in their wages or hours,
and therefore that we underestimated costs, because managerial costs
are a function of the number of workers who work overtime.
Therefore, for this Final Rule, the Department supplemented the CPS
data with data from the Survey of Income and Program Participation
(SIPP) in order to look at likelihood of working some overtime during
the year. Based on 2012 data, the most recent available, the Department
found that 39.4 percent of nonhourly workers worked overtime at some
point in a year. Workers already identified as Types 2, 3, and 4, using
the methodology in the NPRM, compose 24 percent of affected workers.
Therefore, as a second step, the Department classified a share of
workers who reported they do not usually work overtime, and did not
work overtime in the reference week (previously identified as Type 1
workers), as Type 2 workers such that a total of 39.4 percent of
affected workers were Type 2, 3, or 4. Therefore, the Department
estimates fewer Type 1 workers and more Type 2 workers than in the
NPRM.
Modeling Changes in Wages and Hours
In practice, employers do not seem to adjust wages of regular
overtime workers to the full extent indicated by the employment
contract model, and thus employees appear to get a small but
significant increase in weekly earnings due to overtime pay coverage.
Barkume and Trejo found evidence partially supporting both the
employment contract model and the full overtime premium model in
response to a 50 percent overtime premium requirement: A decrease in
the regular rate of pay for workers with overtime (but not the full
decrease to the employment contract model level) and a decrease in the
amount of overtime worked. Therefore, when modeling employer responses
with respect to the adjustment to the regular rate of pay, the
Department used a method that falls somewhere between the employment
contract model and the full overtime premium model (i.e., the partial
employment contract model).
Barkume reported two methods to estimate this partial employment
contract wage, depending on the amount of overtime pay assumed to be
paid in the absence of regulation. As noted above, the Department
believes both the model assuming a voluntary 28 percent overtime
premium and the model assuming no voluntary overtime premium are
unrealistic for the affected population. Therefore, lacking more
information, the Department determined that an appropriate estimate of
the impact on the implicit hourly rate of pay for regular overtime
workers after the Final Rule should be determined using the average of
Barkume's two estimates of partial employment contract model
adjustments: A wage change that is 40 percent of the adjustment toward
the amount predicted by the employment contract model, assuming an
initial zero overtime pay premium, and a wage change that is 80 percent
of the adjustment assuming an initial 28 percent overtime pay
premium.\198\ This is approximately equivalent to assuming that
salaried overtime workers implicitly receive the equivalent of a 14
percent overtime premium in the absence of regulation (the mid-point
between 0 and 28 percent).
---------------------------------------------------------------------------
\198\ Both studies considered a population that included hourly
workers. Evidence is not available on how the adjustment towards the
employment contract model differs between salaried and hourly
workers. The employment contract model may be more likely to hold
for salaried workers than for hourly workers since salaried workers
directly observe their weekly total earnings, not their implicit
equivalent hourly wage. Thus, applying the partial adjustment to the
employment contract model as estimated by these studies may
overestimate the transfers from employers to salaried workers. We
note that such an out-of-sample extrapolation has the potential to
introduce uncertainty, just as there is uncertainty associated with
other effects, such as the replacement of full-time jobs with part-
time jobs, where studies have suggested directionally non-beneficial
effects that are not statistically significant. Due to the lack of
modeling results for salaried employees in the employment contract
model, we do not attempt to quantify the magnitude of this
uncertainty or potential overestimate.
---------------------------------------------------------------------------
Modeling changes in wages, hours, and earnings for Type 1 and Type
4 workers is relatively straightforward. Type 1 affected EAP workers
will become overtime eligible, but since they do not work overtime,
they will see no change in their weekly earnings. Type 4 workers will
remain exempt because their earnings will be raised to the updated EAP
salary level (either the standard salary level or HCE compensation
level depending on which test the worker passed). These workers'
earnings will increase by the difference between their current earnings
and the amount necessary to satisfy the new standard salary requirement
or comply with the new total annual compensation level. It is possible
employers will increase these workers' hours in response to paying them
a higher salary, but the Department has not modeled this potential
change.\199\
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\199\ Cherry, Monica, ``Are Salaried Workers Compensated for
Overtime Hours?'' Journal of Labor Research 25(3): 485-494,
September 2004, found that exempt full-time salaried employees earn
more when they work more hours, but we have chosen not to use her
results for the quantification of the effect on hours of an increase
in earnings.
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[[Page 32487]]
Modeling changes in wages, hours, and earnings for Type 2 and Type
3 workers is more complex and uses findings from Barkume discussed
above. The Department distinguishes those who regularly work overtime
(Type 3 workers) from those who occasionally, or irregularly, work
overtime (Type 2 workers) because employer adjustment to the Final Rule
may differ accordingly. The Department believes that employers are more
likely to adjust hours worked and wages for regular overtime workers
because their hours are predictable. Conversely, it may be more
difficult to adjust hours and wages for occasional overtime workers
because employers may be responding to a transient, perhaps
unpredicted, shift in market demand for the good or service they
provide. In this case, it is likely advantageous for the employer to
pay for this occasional overtime rather than to adjust permanent
staffing. Additionally, the transient and possibly unpredicted nature
of the change may make it difficult to adjust wages for these workers.
The Department treats Type 2 affected workers in two ways due to
the uncertainty of the nature of these occasional overtime hours
worked. If these workers work extra hours on an unforeseen, short-term,
as-needed basis (e.g., to adjust to unanticipated increases in demand),
then there may be less opportunity for employers to adjust straight-
time wages downward.\200\ However, if these workers work extra hours on
a foreseen, periodic basis (e.g., work a few extra hours one week each
month, but workers do not consider it ``regular overtime'' because they
do not work overtime during three weeks each month), then there may be
some opportunity for employers to adjust straight-time wages downward
(e.g., so pre- and post-revision monthly income is more similar). That
this overtime is periodic and predictable is what makes it much more
similar to that worked by Type 3 workers, and provides employers with
more opportunity to adjust hours and wages. Since in reality there is
likely a mix of these two occasional overtime scenarios, the Department
combines models representing these two scenarios when estimating
impacts.
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\200\ Employers may be reluctant to reset hourly wage rates to
respond to unexpected changes to the need for overtime because the
negative impact on worker morale may outweigh the gains from
adjusting wages to unexpected shifts in demand. Of relevance is the
well-established literature that shows employers do not quickly
adjust wages downward in response to downturns in the economy; the
same logic applies to our approach to unexpected changes in demand.
See, for example: Bewley, T. (1999). Why Wages Don't Fall During a
Recession. Cambridge, MA: Harvard University Press. See also Barzel,
Y. (1973). The Determination of Daily Hours and Wages. The Quarterly
Journal of Economics, 87(2), 220-238.
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Our estimate for how Type 2 workers are affected is based on the
assumption that 50 percent of these workers who worked occasional
overtime worked expected overtime hours and the other 50 percent worked
unexpected overtime.\201\ Workers were randomly assigned to these two
groups. Workers with expected occasional overtime hours were treated
like Type 3 affected workers (partial employment contract model
adjustments). Workers with unexpected occasional overtime hours were
assumed to receive a 50 percent pay premium for the overtime hours
worked and receive no change in base wage or hours (full overtime
premium model). When modeling Type 2 workers' hour and wage
adjustments, we treated those identified as Type 2 using the CPS data
as representative of all Type 2 workers. We estimated employer
adjustments and transfers assuming that the patterns observed in the
CPS reference week are representative of an average week in the year.
Thus, we assume total transfers for the year are equal to 52 times the
transfers estimated for the single representative week for which we
have CPS data. However, these transfers are spread over a larger group
including those who occasionally work overtime but did not do so in the
CPS reference week.\202 203\
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\201\ Trejo's and Barkume's adjustments are averages; excluding
some workers (i.e., half of Type 2 workers) from these adjustments
could potentially bias the size of the adjustment for the workers
who continue to receive the adjustment. This bias would exist if
Barkume and Trejo estimated the average adjustment for a sample of
workers including irregular overtime workers and the size of the
adjustment for these workers differs from other workers. It is not
clear whether Trejo's and Barkume's samples include both occasional
and regular overtime workers; however, the Department's
interpretation is that Trejo includes only workers who usually work
overtime and Barkume includes both. If these assumptions are
correct, the magnitude of this RIA's adjustment made for the workers
whose wages and hours are adjusted would be appropriate if it were
applying Trejo's results but may, due to applying Barkume's, result
in an underestimate of the average fall in base wages. We believe
the magnitude of any potential bias will be small because the half
of Type 2 workers who are occasional, regular overtime workers in
the CPS reference week (and thus treated differently) compose only 9
percent of Type 2 and Type 3 workers.
\202\ Because these workers do not work overtime every week, the
size of the wage and hour adjustments will be smaller than modeled.
However, we are only modeling wage and hour adjustments for a subset
of workers. If the wage and hour adjustments are linear, then our
modeling assumptions should yield the same aggregate results as
making smaller adjustments for all workers.
\203\ If a different week was chosen as the survey week, then
likely some of these workers would not have worked overtime.
However, because the data are representative of both the population
and all twelve months in a year, the Department believes the share
of Type 2 workers identified in the CPS data in the given week is
representative of an average week in the year.
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Since Type 2 and Type 3 EAP workers work more than 40 hours per
week, whether routinely or occasionally, they will receive an overtime
premium based on their implicit hourly wage adjusted as described
above. Because employers must now pay more for the same number of labor
hours, they will seek to reduce those hours; in economics, this is
described as a decrease in the quantity of labor hours demanded (a
movement to the left along the labor demand curve). It is the net
effect of these two changes that will determine the final weekly
earnings for affected EAP workers. The reduction in hours is calculated
using the elasticity of labor demand with respect to wages. The
Department used a short-run demand elasticity of -0.20 to estimate the
percentage decrease in hours worked resulting from the increase in
average hourly wages in Year 1, calculated using the adjusted base wage
and the overtime wage premium.\204\ The interpretation of the short run
demand elasticity in this context is that a 10 percent increase in
wages will result in a 2 percent decrease in hours demanded. Transfers
projected for years 2 through 10 used a long-run elasticity; this is
discussed in section VI.D.x.\205\
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\204\ This elasticity estimate is based on the Department's
analysis of Lichter, A., Peichl, A. & Siegloch, A. (2014). The Own-
Wage Elasticity of Labor Demand: A Meta-Regression Analysis. IZA DP
No. 7958. Some researchers have estimated larger impacts on the
number of overtime hours worked (Hamermesh, D. and S. Trejo. (2000).
The Demand for Hours of Labor: Direct Evidence from California. The
Review of Economics and Statistics, 82(1), 38-47 concludes the price
elasticity of demand for overtime hours is at least -0.5. The
Department decided to use a general measure of elasticity applied to
the average change in wages since the increase in the overtime wage
is somewhat offset by a decrease in the non-overtime wage as
indicated in the employment contract model. The Department invited
comments on the appropriate elasticity to be used in this analysis,
but no relevant comments were received.
\205\ In the short run not all factors of production can be
changed and so the change in hours demanded is smaller than in the
long run, when all factors are flexible.
---------------------------------------------------------------------------
For Type 3 affected workers, and the 50 percent of Type 2 affected
workers who worked expected overtime, we estimated adjusted total hours
worked after making wage adjustments using the partial employment
contract model. To estimate adjusted hours worked, we set
[[Page 32488]]
the percent change in total hours worked equal to the percent change in
average wages multiplied by the wage elasticity of labor demand.\206\
The percent change in average wages is equal to the adjusted implicit
average hourly wage minus the original implicit average hourly wage
divided by the original implicit average hourly wage. The original
implicit average hourly wage is equal to original weekly earnings
divided by original hours worked. The adjusted implicit average hourly
wage is equal to adjusted weekly earnings divided by adjusted total
hours worked. Adjusted weekly earnings equals the adjusted hourly wage
(i.e., after the partial employment contract model adjustment)
multiplied by 40 hours plus adjusted hours worked in excess of 40
multiplied by 1.5 times the adjusted hourly wage.
---------------------------------------------------------------------------
\206\ In this equation, the only unknown is adjusted total hours
worked. Since adjusted total hours worked is in the denominator of
the left side of the equation and is also in the numerator of the
right side of the equation, solving for adjusted total hours worked
requires solving a quadratic equation.
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Figure 4 is a flow chart summarizing the four types of affected EAP
workers. Also shown are the impacts on exempt status, weekly earnings,
and hours worked for each type of affected worker.
[[Page 32489]]
[GRAPHIC] [TIFF OMITTED] TR23MY16.006
[[Page 32490]]
[GRAPHIC] [TIFF OMITTED] TR23MY16.007
Estimated Number of and Impacts on Affected EAP Workers
The Department projects 4.2 million workers will be affected by
either (1) an increase in the standard salary level to the 40th
percentile of weekly earnings of full-time salaried workers in the
South because they earn salaries of at least $455 per week and less
than $913 per week, or (2) an increase in the HCE compensation level to
the 90th percentile of earnings of full-time salaried workers
nationwide because they only pass the HCE duties test and earn at least
$100,000 and less than $134,004 annually. These workers are categorized
into the four ``types'' identified previously. There are 2.6 million
Type 1 workers (60.4 percent of all affected EAP workers), those who
work 40 hours per week or less and thus will not be paid an overtime
premium despite their expected change in status to overtime protected
(Table 19). The number of Type 1 workers decreased from the NPRM
because some of these workers are now classified as Type 2 workers (as
explained above). Type 2 workers, those who are expected to become
overtime eligible and do not usually work overtime but do occasionally
work overtime and will be paid the overtime premium, total 817,000
(19.3 percent of all affected EAP workers). Type 3 workers, those who
regularly work overtime and are expected to become overtime eligible
and be paid the overtime premium, are composed of an estimated 759,000
workers (17.9 percent of all affected EAP workers). The number of
affected Type 4 workers was estimated to be 96,000 workers (2.3 percent
of all affected workers); these are workers who the Department believes
will remain exempt because firms will have a financial incentive to
increase their weekly salaries to the updated salary and compensation
levels, rather than pay a premium for overtime hours.\207\
---------------------------------------------------------------------------
\207\ As previously described, the Department calculated a wage
and hour adjustment for all regular overtime workers. Consider, by
way of example, a worker who initially earned $900 and worked 70
hours per week. Suppose the partial employment contract adjustment
results in a regular rate of pay of $11.94 and 69.5 hours worked per
week. After the partial employment contract adjustments, this worker
would receive approximately $1,006 per week ((40 x $11.94) + (29.5 x
($11.94 x 1.5)). Since this is greater than the proposed standard
salary level, the Department estimated that this worker would have
his salary increased to $913 and remain exempt.
Table 19--Affected EAP Workers by Type (1,000s), FY2017
----------------------------------------------------------------------------------------------------------------
Regular overtime
No overtime Occasional -------------------------------
Total (T1) overtime (T2) Newly Remain exempt
nonexempt (T3) (T4)
----------------------------------------------------------------------------------------------------------------
Standard salary level........... 4,163 2,523 815 730 95
HCE compensation level.......... 64.9 32.5 2.7 28.5 1.2
-------------------------------------------------------------------------------
Total....................... 4,228 2,555 817 759 96
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
*Type 1: Workers without regular OT and without occasional OT and become overtime eligible.
*Type 2: Workers without regular OT but with occasional OT. These workers become overtime eligible. Paid
overtime premium pay, so average weekly earnings increase, but regular rate of pay and hours fall for 50
percent of workers who regularly work occasional overtime.
*Type 3: Workers with regular OT who become overtime eligible. Paid overtime premium pay, so average weekly
hours increase, but regular rate of pay and hours fall.
*Type 4: Workers with regular OT who remain exempt (i.e., earnings increase to the updated salary level).
The Final Rule will likely impact some affected workers' hourly
wages, hours, and weekly earnings. Predicted changes in implicit wage
rates are outlined in Table 20; changes in hours in Table 21; and
changes in weekly earnings in Table 22. How these will change depends
on the type of worker, but on average weekly earnings are unchanged or
increase while hours worked are unchanged or decrease.
Type 1 workers will have no change in wages, hours, or
earnings.\208\ Estimating changes in the regular rate of pay for Type 3
workers and the 50 percent of Type 2 workers who regularly work
occasional overtime requires
[[Page 32491]]
application of the partial employment contract model, which predicts a
decrease in their average regular rates of pay. The Department
estimates that employers would decrease these workers' regular hourly
rates of pay to the amount predicted by the partial employment contract
model adjustment. Employers are assumed to be unable to adjust the
hours or regular rate of pay for the occasional overtime workers whose
overtime is irregularly scheduled and unpredictable (the remaining 50
percent of Type 2 workers); therefore, their earnings will increase
because they will receive the overtime premium for their unpredictable
overtime hours. As a group, Type 2 workers currently exempt under the
standard test would see a decrease in their average regular hourly wage
(i.e., excluding the overtime premium) from $19.00 to $18.92, a
decrease of 0.4 percent (Table 20). Type 2 workers paid between
$100,000 and the updated HCE compensation level would see an average
decrease in their regular hourly wage from $57.73 to $55.02, a decrease
of 4.7 percent. However, because workers will now receive a 50 percent
premium on their regular hourly wage for each hour worked in excess of
40 hours per week, average weekly earnings for Type 2 workers would
increase.\209\
---------------------------------------------------------------------------
\208\ It is possible that these workers may experience an
increase in hours and weekly earnings because of transfers of hours
from overtime workers. Due to the high level of uncertainty in
employers' responses regarding the transfer of hours, the Department
did not have credible evidence to support an estimation of the
number of hours transferred to other workers.
\209\ Type 2 workers do not see increases in regular earnings to
the new salary level (as Type 4 workers do) even if their new
earnings exceed that new level. This is because the estimated new
earnings only reflect their earnings in that week when overtime is
worked; their earnings in typical weeks that they do not work
overtime do not exceed the salary level.
---------------------------------------------------------------------------
Type 3 workers will also receive decreases in their regular hourly
wage as predicted by the partial employment contract model. Type 3
affected workers paid below the new standard salary level would have
their regular hourly rate of pay decrease on average from $14.51 to
$13.74 per hour, a decrease of 5.3 percent. Type 3 workers paid between
$100,000 and the new HCE compensation level would have their regular
rate of pay decrease on average from $41.43 to $38.80 per hour, a
decrease of 6.3 percent. Again, although regular hourly rates decline,
weekly earnings will increase on average because these workers are now
eligible for the overtime premium.
Type 4 workers' implicit hourly rates of pay would increase in
order for their earnings to meet the updated standard salary level
($913 per week) or the updated HCE annual compensation level ($134,004
annually). The implicit hourly rate for Type 4 affected EAP workers who
had earned at least $455 and below $913 per week would increase on
average from $17.32 to $17.54 (a 1.3 percent increase). The implicit
hourly rate of pay for Type 4 workers who had earned between $100,000
and $134,004 annually would increase on average from $49.97 to $50.76
(a 1.6 percent increase).
Table 20--Average Regular Rate of Pay by Type of Affected EAP Worker, FY2017
----------------------------------------------------------------------------------------------------------------
Regular overtime
-------------------------------
Total No overtime Occasional Newly
(T1) overtime (T2) nonexempt Remain exempt
(T3) (T4)
----------------------------------------------------------------------------------------------------------------
Standard Salary Level
----------------------------------------------------------------------------------------------------------------
Before Final Rule............... $18.39 $19.36 $19.00 $14.51 $17.32
After Final Rule................ $18.25 $19.36 $18.92 $13.74 $17.54
Change ($)...................... -$0.15 $0.00 -$0.08 -$0.77 $0.23
Change (%)...................... -0.8% 0.0% -0.4% -5.3% 1.3%
----------------------------------------------------------------------------------------------------------------
HCE Compensation Level
----------------------------------------------------------------------------------------------------------------
Before Final Rule............... $49.62 $56.13 $57.73 $41.43 $49.97
After Final Rule................ $48.37 $56.13 $55.02 $38.80 $50.76
Change ($)...................... -$1.25 $0.00 -$2.72 -$2.63 $0.79
Change (%)...................... -2.5% 0.0% -4.7% -6.3% 1.6%
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
*Type 1: Workers without regular OT and without occasional OT and become overtime eligible.
*Type 2: Workers without regular OT but with occasional OT. These workers become overtime eligible. Paid
overtime premium pay, so average weekly earnings increase, but regular rate of pay and hours fall for 50
percent of workers who regularly work occasional overtime.
*Type 3: Workers with regular OT who become overtime eligible. Paid overtime premium pay, so average weekly
earnings increase, but regular rate of pay and hours fall.
*Type 4: Workers with regular OT who remain exempt (i.e., earnings increase to the updated salary level).
Type 1 and Type 4 workers would have no change in hours. Type 1
workers' hours would not change because they do not work overtime and
thus the requirement to pay an overtime premium does not affect them.
Type 4 workers' hours may increase, but due to lack of data, the
Department assumed hours would not change. Half of Type 2 and all Type
3 workers would see a small decrease in their hours of overtime worked.
This reduction in hours is relatively small and is due to the effect on
labor demand from the increase in the average hourly base wage as
predicted by the employment contract model.
Type 2 workers who work occasional overtime hours would be newly
overtime eligible and would see a negligible decrease in average weekly
hours in weeks where occasional overtime is worked (0.1 percent
decrease) (Table 21).\210\ This is the average change across all weeks,
including weeks without overtime, in which the decrease in hours is
zero. Type 2 workers who would no longer earn the updated HCE
compensation level would see a decrease in average weekly hours in
applicable weeks from 48.5 to 48.2 (0.5 percent). Type 3 workers
affected by the increase in the standard salary level would see a
decrease in hours worked from 50.8 to 50.3 hours per week (0.8
percent). Type
[[Page 32492]]
3 workers affected by the increase in the HCE compensation level would
see an average decrease from 52.4 to 52.0 hours per week (0.7 percent).
---------------------------------------------------------------------------
\210\ The Department estimates that half of Type 2 workers
(those who work unpredictable overtime hours) will not see a
reduction in their hours; however as a group, Type 2 workers are
expected to experience a reduction in their hours of work. Because
only half these workers experience a change in hours and because
they work less overtime on average, the aggregate change is smaller
than for Type 3 workers.
Table 21--Average Weekly Hours for Affected EAP Workers by Type, FY2017
----------------------------------------------------------------------------------------------------------------
Regular OT
-------------------------------
Total No overtime Occasional OT Newly
worked (T1) (T2) nonexempt Remain exempt
(T3) (T4)
----------------------------------------------------------------------------------------------------------------
Standard Salary Level \a\
----------------------------------------------------------------------------------------------------------------
Before Final Rule............... 41.4 38.6 40.3 50.8 53.5
After Final Rule................ 41.3 38.6 40.3 50.3 53.5
Change ($)...................... -0.1 0.0 0.0 -0.4 0.0
Change (%)...................... -0.2% 0.0% -0.1% -0.8% 0.0%
----------------------------------------------------------------------------------------------------------------
HCE Compensation Level \a\
----------------------------------------------------------------------------------------------------------------
Before Final Rule............... 45.5 39.0 48.5 52.4 51.1
After Final Rule................ 45.3 39.0 48.2 52.0 51.1
Change ($)...................... -0.2 0.0 -0.3 -0.4 0.0
Change (%)...................... -0.4% 0.0% -0.5% -0.7% 0.0%
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Usual hours for Types 1, 3, and 4 but actual hours for Type 2 workers identified in the CPS MORG.
*Type 1: Workers without regular OT and without occasional OT and become overtime eligible.
*Type 2: Workers without regular OT but with occasional OT. These workers become overtime eligible. Paid
overtime premium pay, so average weekly earnings increase, but regular rate of pay and hours fall for 50
percent of workers who regularly work occasional overtime.
*Type 3: Workers with regular OT who become overtime eligible. Paid overtime premium pay, so average weekly
earnings increase, but regular rate of pay and hours fall.
*Type 4: Workers with regular OT who remain exempt (i.e., earnings increase to the updated salary level).
Because Type 1 workers do not experience a change in their regular
rate of pay or hours, they would have no change in earnings due to the
Final Rule (Table 22). While their hours are not expected to change,
Type 4 workers' salaries would increase to the new standard salary
level or HCE compensation level (depending on which test they pass).
Thus, Type 4 workers' average weekly earnings would increase by $12.70
(1.4 percent) for those affected by the change in the standard salary
level and by $41.58 per week (1.6 percent) for those affected by the
HCE compensation level.
Although both Type 2 and Type 3 workers on average experience a
decrease in both their regular rate of pay and hours worked, their
weekly earnings are expected to increase as a result of the overtime
premium. Based on a standard salary level of $913 per week, Type 2
workers' average weekly earnings increase from $751.47 to $760.11, a
1.1 percent increase. The average weekly earnings of Type 2 workers
affected by the change in the HCE compensation level were estimated to
increase from $2,778.65 to $2,836.63, a 2.1 percent increase. For Type
3 workers affected by the standard salary level, average weekly
earnings would increase from $723.86 to $743.83, an increase of 2.8
percent. Type 3 workers affected by the change in the HCE compensation
level have an increase in average weekly earnings from $2,136.91 to
$2,196.10, an increase of 2.8 percent. Weekly earnings after the
standard salary level increased were estimated using the new wage
(i.e., the partial employment contract model wage) and the reduced
number of overtime hours worked.
Table 22--Average Weekly Earnings for Affected EAP Workers by Type, FY2017
----------------------------------------------------------------------------------------------------------------
Regular overtime
-------------------------------
Total No overtime Occasional Newly
(T1) overtime (T2) nonexempt Remain exempt
(T3) (T4)
----------------------------------------------------------------------------------------------------------------
Standard Salary Level \a\
----------------------------------------------------------------------------------------------------------------
Before Final Rule............... $733.65 $724.45 $751.47 $723.86 $900.30
After Final Rule................ $739.13 $724.45 $760.11 $743.83 $913.00
Change ($)...................... $5.48 $0.00 $8.63 $19.97 $12.70
Change (%)...................... 0.7% 0.0% 1.1% 2.8% 1.4%
----------------------------------------------------------------------------------------------------------------
HCE Compensation Level \a\
----------------------------------------------------------------------------------------------------------------
Before Final Rule............... $2,180.55 $2,155.94 $2,778.65 $2,136.91 $2,535.42
After Final Rule................ $2,209.75 $2,155.94 $2,836.63 $2,196.10 $2,577.00
Change ($)...................... $29.19 $0.00 $57.98 $59.19 $41.58
Change (%)...................... 1.3% 0.0% 2.1% 2.8% 1.6%
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
[[Page 32493]]
\a\ The mean of the hourly wage multiplied by the mean of the hours does not necessarily equal the mean of the
weekly earnings because the product of two averages is not necessarily equal to the average of the product.
*Type 1: Workers without regular OT and without occasional OT and become overtime eligible.
*Type 2: Workers without regular OT but with occasional OT. These workers become overtime eligible. Paid
overtime premium pay, so average weekly earnings increase, but regular rate of pay and hours fall for 50
percent of workers who regularly work occasional overtime.
*Type 3: Workers with regular OT who become overtime eligible. Paid overtime premium pay, so average weekly
earnings increase, but regular rate of pay and hours fall.
*Type 4: Workers with regular OT who remain exempt (i.e., earnings increase to the updated salary level).
At the new standard salary level, the average weekly earnings of
all affected workers is expected to increase from $733.65 to $739.13, a
change of $5.48 (0.7 percent). However, these figures mask the impact
on workers whose hours and earnings will change because Type 1 workers,
who do not work overtime, make up more than 60 percent of the pool of
affected workers. If Type 1 workers are excluded, the average increase
in weekly earnings is $13.91 (1.9 percent). Multiplying the average
change of $5.48 by the 4.2 million affected standard EAP workers equals
an increase in earnings of $22.8 million per week or $1,187 million in
the first year (Table 23). Of the weekly total, $660,000 is due to the
minimum wage provision and $22.2 million stems from the overtime pay
provision.
For workers affected by the change in the HCE compensation level,
average weekly earnings increase by $29.19 ($57.57 if Type 1 workers,
who do not work overtime, are excluded). When multiplied by 65,000
affected workers, the national increase in weekly earnings is $1.9
million per week, or $98.5 million in the first year. Thus, total Year
1 transfer payments attributable to this Final Rule total $1,285.2
million.
Table 23--Total Change in Weekly and Annual Earnings for Affected EAP
Workers by Provision, FY2017
------------------------------------------------------------------------
Total change in earnings
(1,000s)
Provision -------------------------------
Weekly Annual
------------------------------------------------------------------------
Total \a\............................... $24,715 $1,285,162
Standard salary level:..................
Total............................... 22,820 1,186,646
Minimum wage only................... 660 34,338
Overtime pay only \b\............... 22,160 1,152,308
HCE compensation level:.................
Total............................... 1,895 98,515
Minimum wage only...................
Overtime pay only \b\............... 1,895 98,515
------------------------------------------------------------------------
\a\ Due to both the minimum wage and overtime pay provisions and changes
in both the standard salary level and the HCE compensation level.
\b\ Estimated by subtracting the minimum wage transfer from the total
transfer.
4. Potential Transfers Not Quantified
There may be additional transfers attributable to this Final Rule;
however, the magnitude of these other transfers could not be
quantified.
Reduced Earnings for Some Workers
Holding regular rate of pay and work hours constant, payment of an
overtime premium will increase weekly earnings for workers who work
overtime. However, as discussed previously, employers may try to
mitigate cost increases by reducing the number of overtime hours
worked, either by transferring these hours to other workers or
monitoring hours more closely. Depending on how hours are adjusted, a
specific worker may earn less pay after this Final Rule. For example,
assume an exempt worker is paid for overtime hours at his regular rate
of pay (not paid the overtime premium but still acquires a benefit from
each additional hour worked over 40 in a week). If the employer does
not raise the worker's salary to the new level, requiring the overtime
premium may cause the employer to reduce the worker's hours to 40 per
week. If the worker's regular rate of pay does not increase, the worker
will earn less due to the lost hours of work.
Additional Work for Some Workers
Affected workers who remain exempt will see an increase in pay but
may also see an increase in workload as Emerge Center and other
commenters noted. The Department estimated the net changes in hours,
but as noted in section VI.D.iv.3, subpart Modeling Changes in Wages
and Hours, did not estimate changes in hours for affected workers whose
earnings increase (perhaps most notably those whose salary is increased
to the new threshold so they remain overtime exempt).
Reduction in Bonuses and Benefits
Some commenters stated that employers may offset increased labor
costs by reducing bonuses or benefits.\211\ See, e.g., Greater
Philadelphia Chamber of Commerce; Kentucky Society of CPAs; Michigan
Association of Certified Public Accountants; Rockingham County, North
Carolina. AGC stated that 40 percent of the members it surveyed
expected affected employees to lose some fringe benefits. Other
commenters, such as AIA-PCI, stated that employers would reduce bonus
and incentive pay to newly overtime-eligible workers, offsetting some
of the earnings gains achieved through overtime pay. NAHB presented
results from a survey conducted of members concerning overtime of
construction supervisors, and stated that of the 33 percent of
companies indicating that a change in company policies, with respect to
construction supervisors, would occur, 55 percent reported they would
``reduce or eliminate bonuses'' and 33 percent indicated they would
``reduce or eliminate other benefits.'' This results in approximately
18 percent of respondents predicting reduced bonuses
[[Page 32494]]
and 11 percent predicting reduced benefits.
---------------------------------------------------------------------------
\211\ Other commenters asserted that some newly overtime-
eligible employees will lose benefits that their employers tie to
exempt status. See, e.g., CUPA-HR; National Association of
Electrical Distributors; WorldatWork. As the Department explained in
section IV.A.iv., we see no compelling reason why employers cannot
change their compensation plans to provide such fringe benefits and
bonus payments based upon, for example, the employees' job titles
rather than based upon their exemption status.
---------------------------------------------------------------------------
Commenters did not provide any data from which to estimate the
potential magnitude of changes to benefits or bonuses. Therefore, the
Department has not incorporated these impacts into the cost and
transfer estimates. Furthermore, the Department believes if employers
reduce benefits or bonuses, those reductions will occur instead of the
full employer adjustments included in the model; that is, an employer
who reduces benefits or bonuses is likely to reduce base wages by a
smaller amount. The labor market will constrain to some extent
employers' ability to reduce labor costs, regardless of the types of
compensation they use to achieve those reductions.
v. Sensitivity Analysis
This section includes estimated costs and transfers using either
different assumptions or segments of the population. First, the
Department presents bounds on transfer payments estimated using
alternative assumptions. Second, in response to commenter concerns that
the rulemaking would have a disproportionate impact on low-wage regions
and industries, the Department considers costs and transfers by region
and by industry.
1. Bounds on Transfer Payments
Because the Department cannot predict employers' precise reaction
to the Final Rule, the Department calculated bounds on the size of the
estimated transfers from employers to workers using a variety of
assumptions. Since transfer payments are the largest component of this
Final Rule, the scenarios considered here are bounds around the
transfer estimate. Based on the assumptions made, these bounds do not
generate bounded estimates for costs or DWL.
The potential upper limit for transfers occurs with the assumption
that the demand for labor is completely inelastic, and therefore
neither the implicit regular hourly rate of pay nor hours worked adjust
in response to the changes in the EAP standard salary level and HCE
annual compensation level. Under this assumption, employers pay workers
one and a half times their current implicit hourly rate of pay for all
overtime hours currently worked (i.e., the full overtime premium). The
potential lower bound occurs when wages adjust completely and weekly
earnings are unchanged as predicted by the employment contract model.
The Department believes that both the upper bound scenario and the
lower bound scenario are unrealistic; therefore, we constructed more
credible bounds.
For a more realistic upper bound on transfer payments, the
Department assumed that all occasional overtime workers and half of
regular overtime workers would receive the full overtime premium (i.e.,
such workers would work the same number of hours but be paid 1.5 times
their implicit initial hourly wage for all overtime hours). Conversely,
in the preferred model the Department assumed that only 50 percent of
occasional overtime workers and no regular overtime workers would
receive the full overtime premium. For the other half of regular
overtime workers, the Department assumed in the upper bound method that
they would have their implicit hourly wage adjusted as predicted by the
partial employment contract model (wage rates fall and hours are
reduced but total earnings continue to increase, as in the preferred
method). Table 24 summarizes the assumptions described above.
The plausible lower transfer bound also depends on whether
employees work regular overtime or occasional overtime. For those who
regularly work overtime hours and half of those who work occasional
overtime, the Department assumes the employees' wages will fully adjust
as predicted by the employment contract model (in the preferred method
their wages adjust based on the partial employment contract
model).\212\ For the other half of employees with occasional overtime
hours, the lower bound assumes they will be paid one and one-half times
their implicit hourly wage for overtime hours worked (full overtime
premium).
---------------------------------------------------------------------------
\212\ The straight-time wage adjusts to a level that keeps
weekly earnings constant when overtime hours are paid at 1.5 times
the straight-time wage. In cases where adjusting the straight-time
wage results in a wage less than the minimum wage, the straight-time
wage is set to the minimum wage.
Table 24--Summary of the Assumptions Used To Calculate the Lower
Estimate, Preferred Estimate, and Upper Estimate of Transfers
------------------------------------------------------------------------
Upper transfer
Lower transfer estimate Preferred estimate estimate
------------------------------------------------------------------------
Occasional Overtime Workers (Type 2)
------------------------------------------------------------------------
50% full EC model adj........... 50% partial EC 100% full overtime
model adj. premium.
50% full overtime premium....... 50% full overtime
premium.
------------------------------------------------------------------------
Regular Overtime Workers (Type 3)
------------------------------------------------------------------------
100% full EC model adj.......... 100% partial EC 50% partial EC
model adj. model adj.
50% full overtime
premium.
------------------------------------------------------------------------
* Full overtime premium: Regular rate of pay equals the implicit hourly
wage prior to the regulation (with no adjustments); workers are paid
1.5 times this base wage for the same number of overtime hours worked
prior to the regulation.
* Full employment contract (EC) model: Base wages are set at the higher
of: (1) A rate such that total earnings and hours remain the same
before and after the regulation; thus the base wage falls, and workers
are paid 1.5 times the new base wage for overtime hours (the
employment contract model) or (2) the minimum wage.
* Partial employment contract model: Regular rates of pay are partially
adjusted to the wage implied by the employment contract model. The
resulting regular rate of pay is the midpoint of: (1) A base wage that
adjusts 40 percent of the way to the employment contract model wage
level, assuming no overtime premium was initially paid and (2) a base
wage that adjusts 80 percent of the way to the employment contract
model wage level, assuming the workers initially received a 28 percent
premium for overtime hours worked.
The cost and transfer payment estimates associated with the bounds
are presented in Table 25. Regulatory familiarization costs and
adjustment costs do not vary across the scenarios. These employer costs
are a function of the number of affected firms or affected workers,
human resource personnel hourly wages, and time estimates. None of
these vary based on the assumptions made above. Conversely, managerial
costs are lower under these alternative
[[Page 32495]]
employer response assumptions because fewer workers' hours are adjusted
by employers and thus managerial costs, which depend in part on the
number of workers whose hours change, will be smaller.\213\ Depending
on how employers adjust the implicit regular hourly wage, estimated
transfers may range from $487.5 million to $2,525.3 million, with the
preferred estimate equal to $1,285.2 million.
---------------------------------------------------------------------------
\213\ In the lower transfer estimate, managerial costs are zero
because hours do not change for any Type 2 or Type 3 workers.
Table 25--Bounds on Year 1 Cost and Transfer Payment Estimates, FY 2017
[Millions]
----------------------------------------------------------------------------------------------------------------
Lower transfer Preferred Upper transfer
Cost/transfer estimate estimate estimate
----------------------------------------------------------------------------------------------------------------
Direct employer costs:
Reg. familiarization........................................ $272.5 $272.5 $272.5
Adjustment costs............................................ 191.4 191.4 191.4
Managerial costs............................................ 0.0 214.0 62.4
Total direct employer costs..................................... 463.9 677.9 526.2
Transfers....................................................... 487.5 1,285.2 2,525.3
----------------------------------------------------------------------------------------------------------------
Note 1: Pooled data for FY2013-FY2015 projected to reflect FY2017.
Note 2: Estimates due to both the minimum wage and overtime pay provisions and changes in both the standard
salary level and the HCE compensation level.
2. Impacts by Regions and Industries
In response to commenter concerns that the proposed standard salary
level would disproportionately impact low-wage regions and low-wage
industries, and requests for additional information on impacts by
region and/or industry, this section presents estimates of the impacts
of this Final Rule by region and by industry (see section IV.A.iv.).
PPWO asserted that the Department's probability codes demonstrate
that the proposed salary level will disproportionately impact low-wage
regions and industries. Specifically, PPWO cited a study that found 100
percent of first-line supervisors of food preparation and serving
workers in Mississippi would fall below the new threshold, even though
the Department's probability codes state that 10 to 50 percent of
employees in this occupation should pass the duties test. The
Department estimated based on CPS data for FY2013-FY2015 that about 20
percent of first-line supervisors of food preparation and serving
workers in Mississippi in this industry will exceed the Final Rule
salary threshold, while only 10 to 50 percent will pass the duties
test, which shows the change in the Final Rule mitigates the impact on
low-wage regions and industries. Similarly, the National Association of
Home Builders (NAHB) analyzed state-level data and found that 50
percent or more of first line construction supervisors in Arkansas,
Mississippi, New Mexico, and Tennessee would be affected by the
Department's proposal. However, 55 percent of first line supervisors of
construction trades and extraction workers in the South earn above the
Final Rule's salary threshold, even though only 0 to 10 percent of such
workers nationwide are likely to pass the standard duties test.
Finally, the National Restaurant Association (NRA) noted, based on a
2014 study, that the median base salary paid to restaurant managers is
$47,000 and to crew and shift supervisors is $38,000. As revised, the
standard salary level in this Final Rule is approximately equivalent to
the 2014 median base salary paid to restaurant managers cited by NRA.
The Department analyzed impacts to low wage regions by comparing
the number of affected workers, costs, and transfers across the four
Census Regions. The region with the most affected workers is the South
(1.7 million). However, as a share of potentially affected workers in
the region, the South is not unduly affected relative to other regions
(22 percent are affected compared with 16 to 19 percent in other
regions); as a share of all workers in the region, the South is also
not unduly affected relative to other regions (3.6 percent are affected
compared with 2.7 to 3.2 percent in other regions).
Table 26--Potentially Affected and Affected Workers, by Region, FY2017
----------------------------------------------------------------------------------------------------------------
Affected workers
Potentially ---------------------------------------------------
Workers affected Percent of
Region subject to workers Number Percent of potentially Percent of
FLSA (millions) (millions) total affected all workers
(millions) \a\ \b\ affected workers in in region
region
----------------------------------------------------------------------------------------------------------------
All............................... 132.8 22.5 4.2 100 18.8 3.2
Northeast......................... 24.8 4.8 0.8 18.6 16.4 3.2
Midwest........................... 29.5 4.7 0.9 20.8 18.6 3.0
South............................. 48.2 7.8 1.7 41.1 22.2 3.6
West.............................. 30.2 5.1 0.8 19.5 16.0 2.7
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a \ Potentially affected workers are EAP exempt workers who are white collar, salaried, not eligible for
another (non-EAP) overtime exemption, and not in a named occupation.
\b\ Estimated number of workers exempt under the EAP exemptions who would be entitled to overtime protection
under the updated salary levels (if their weekly earnings do not increase to the new salary levels).
[[Page 32496]]
Total transfers in the first year were estimated to be $1.3 billion
(Table 27). As expected, the transfers in the South are the largest
portion because the largest number of affected workers is employed in
the South. Transfers in the South were estimated to be about 36.5
percent of all transfers, while the South composes 41.1 percent of all
affected workers (see section VI.D.ii.), thus, transfers per affected
workers are somewhat below average in the South. Annual transfers per
worker are $270 in the South and range from $242 to $378 in other
regions. Excluding Type 1 workers, whose hours do not change, annual
transfers per worker are $699 in the South and range from $664 to
$1,004 in other regions.
Table 27--Transfers by Region, FY2017
----------------------------------------------------------------------------------------------------------------
Total change
Region in earnings Percent of Per affected
(millions) \a\ total worker
----------------------------------------------------------------------------------------------------------------
Total........................................................... $1,285.2 100 $304.00
Northeast....................................................... 189.9 14.8 241.86
Midwest......................................................... 314.7 24.5 357.13
South........................................................... 469.3 36.5 269.96
West............................................................ 311.3 24.2 378.28
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Due to both the minimum wage and overtime pay provisions and changes in both the standard salary level and
the HCE compensation level.
Direct employer costs are composed of regulatory familiarization
costs, adjustment costs, and management costs. Total first year direct
employer costs were estimated to be $677.9 million (Table 28). Total
direct employer costs were estimated to be the highest in the South
($259.6 million) and lowest in the Northeast ($123.0 million). While
the three components of direct employer costs vary as a percent of
these total costs by region, the percentage of total direct costs in
each region is fairly consistent with the share of all workers in a
region. Direct employer costs in each region as a percentage of the
total direct costs were estimated to be 18.1 percent in the Northeast,
22.7 percent in the Midwest, 38.3 percent in the South, and 20.9
percent in the West. Once again, these proportions are almost the same
as the proportions of the total workforce in each region: 18.5 percent
in the Northeast, 22.0 percent in the Midwest, 36.7 percent in the
South, and 22.8 percent in the West.
Table 28--Direct Employer Costs by Region, FY2017
----------------------------------------------------------------------------------------------------------------
Direct employer costs \a\ All regions Northeast Midwest South West
----------------------------------------------------------------------------------------------------------------
Costs (Millions)
----------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... $272.5 $52.6 $59.9 $95.7 $64.3
Adjustment...................... 191.4 35.6 39.9 78.7 37.3
Managerial...................... 214.0 34.9 54.1 85.1 39.9
Total direct costs.......... 677.9 123.0 153.9 259.6 141.5
----------------------------------------------------------------------------------------------------------------
Percent of Total Costs by Region
----------------------------------------------------------------------------------------------------------------
Regulatory familiarization...... 100 19.3 22.0 35.1 23.6
Adjustment...................... 100 18.6 20.8 41.1 19.5
Managerial...................... 100 16.3 25.3 39.8 18.7
Total direct costs.......... 100 18.1 22.7 38.3 20.9
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ All costs include both standard salary level costs and HCE compensation level costs.
Another way to compare the relative impacts of this Final Rule by
region is to consider the transfers and costs as a proportion of
current payroll and current revenues (Table 29). Nationally, direct
employer costs are 0.010 percent of payroll. By region, direct employer
costs as a percent of payroll are also approximately the same (between
0.009 and 0.012 percent of payroll). Direct employer costs as a percent
of revenue are 0.002 percent nationally and in each region.
Transfers as a percent of payroll show greater variation among the
regions than costs, but the levels are still very low. Transfers as a
percent of payroll range from 0.013 percent in the Northeast to 0.023
percent in the Midwest. As a percent of revenue, transfers range from
0.003 to 0.004 percent. Thus, although there are some slight
differences among regions, costs and transfers relative to either
current payroll or revenue are less than a tenth of one percent. It is
unlikely that a difference of 0.012 percent in costs and transfers as a
percentage of payroll between the Northeast (0.022 percent--the lowest
percentage) and the Midwest (0.034 percent--the highest percentage)
would create any significant regional competitive advantage.
Several commenters expressed concern that this rulemaking will be
more costly in low-wage regions due to lower revenue; for example, an
individual commenter wrote ``a restaurant in NYC taking in a million or
more per year may not have any problem paying their manager or managers
this proposed minimum salary. However a restaurant in a mid-west town
that does say half that or 500,000 in sales, simply cannot afford such
a salary.'' Similarly, the National Funeral Directors Association
asserted the rule will ``be much more disruptive for funeral homes in
smaller rural communities where many of those
[[Page 32497]]
family-owned businesses are already wrestling with lower revenue
levels.''
However, regional comparisons must incorporate more than a
comparison of a single occupation: while revenues of a typical
restaurant in NYC are higher than a typical restaurant in Milwaukee, so
are costs including managers' salaries, other employees' wages, food
costs and overhead, thus the relative ability of the NYC restaurant to
increase managers' salaries might be more apparent than real. In
addition, the Department has noted in our analysis that employers will
adjust employees' earnings and hours to reduce the impact of the rule
beyond the simple calculation of multiplying the overtime premium by
the number of overtime hours worked. For example, in Table 22, the
Department indicates that on average Type 3 workers will receive a less
than three percent increase in weekly earnings. In the restaurant
scenario described, this small increase in earnings applies to a
fraction of the restaurant's labor force, which in itself is a fraction
of total costs and revenues. Therefore, based on the above analysis,
the Department does not believe low-wage regions will be unduly
affected.
Table 29--Annual Transfers and Costs as Percents of Payroll and of Revenue by Region, FY2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Direct employer costs Transfers
Payroll Revenue ---------------------------------------------------------------
Region (billions) (billions) As percent of As percent of As percent of As percent of
payroll revenue payroll revenue
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total................................................... $6,524 $37,261 0.010% 0.002% 0.020% 0.003%
Northeast............................................... 1,440 7,492 0.009 0.002 0.013 0.003
Midwest................................................. 1,393 8,503 0.011 0.002 0.023 0.004
South................................................... 2,171 13,362 0.012 0.002 0.022 0.004
West.................................................... 1,520 7,905 0.009 0.002 0.020 0.004
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: Pooled data for FY2013-FY2015 projected to reflect FY2017. Payroll, revenue, costs, and transfers all exclude the federal government.
Sources: Private sector payroll and revenue data from 2012 Economic Census. State and local payroll data from 2014 Annual Survey of Public Employment
and Payroll. State and local revenue data from 2012 Census of Governments.
In order to gauge the impact of the final rule on industries, the
Department compared estimates of combined direct costs and transfers as
a percent of payroll, profits, and revenue, for the 13 major industry
groups (Table 30).\214\ This provides a common method of assessing the
relative impacts of the rule on different industries, and the magnitude
of adjustments the rule may require on the part of enterprises in each
industry. The relative costs and transfers expressed as a percentage of
payroll are particularly useful measures of the relative size of
adjustment faced by organizations in an industry because they benchmark
against the cost category directly associated with the labor force.
Measured in these terms, costs and transfers as a percent of payroll
are highest in agriculture, other services, and leisure and
hospitality. However, the overall magnitude of the relative shares are
small, representing less than 0.1 percent of overall payroll costs
across industries. The differences between industries are also small,
with the range of values of total costs and transfers as a percent of
payroll ranging from a low of .01 percent (public administration) to a
high of 0.09 percent (agriculture).
---------------------------------------------------------------------------
\214\ Note that the totals in this table for transfers and
direct costs do not match the totals in other sections due to the
exclusion of transfers to federal workers and costs to federal
entities. Federal costs and transfers are excluded to be consistent
with payroll and revenue which exclude the federal government.
---------------------------------------------------------------------------
The Department also estimates transfers and costs as a percent of
profits.215 216 Benchmarking against profits is potentially
helpful in the sense that it provides a measure of the Final Rule's
effect against returns to investment. However, this metric must be
interpreted carefully as it does not account for differences across
industries in risk-adjusted rates of return which are not readily
available for this analysis. The ratio of costs and transfers to
profits also does not reflect differences in the firm-level adjustment
to profits impacts reflecting cross-industry variation in market
structure.\217\ Nonetheless, the overall magnitude of costs and
transfers as a percentage of profits are small, representing in all
industries except one (transportation and utilities) less than 1.0
percent of overall profits. The differences between industries are also
small, with the range of values of total costs and transfers as a
percent of profits ranging from a low of .04 percent (financial
activities) to a high of 1.46 percent (transportation and utilities).
---------------------------------------------------------------------------
\215\ Internal Revenue Service. (2012). Corporation Income Tax
Returns. Available at: https://www.irs.gov/pub/irs-soi/12coccr.pdf.
\216\ Table 1 of the IRS report provides information on total
receipts, net income, and deficits. The Department calculated the
ratio of net income (column (7)) less any deficit (column (8)) to
total receipts (column (3)) for all firms by major industry
categories. Costs and transfers as a percent of revenues were
divided by the profit to receipts ratios to calculate the costs and
transfers as a percent of profit.
\217\ In particular, a basic model of competitive product
markets would predict that highly competitive industries with lower
rates of return would adjust to increases in the marginal cost of
labor arising from the rule through an overall, industry-level
increase in prices and a reduction in quantity demanded based on the
relative elasticities of supply and demand. Alternatively, more
concentrated markets with higher rates of return would be more
likely to adjust through some combination of price increases and
profit reductions based on elasticities as well as interfirm pricing
responses.
---------------------------------------------------------------------------
Finally, the Department's estimates of transfers and costs as a
percent of revenue by industry also indicate very small impacts (Table
30). The industries with the largest costs and transfers as a percent
of revenue are leisure and hospitality and other services. However, the
difference between the leisure and hospitality industry, the industry
with the highest costs and transfers as a percent of revenue, and the
industry with the lowest costs and transfers as a percent of revenue
(public administration) is 0.02 percentage points. Table 30 illustrates
that the actual differences in costs relative to revenues are quite
small across industry groupings.
[[Page 32498]]
Table 30--Annual Transfers, Total Costs, and Transfers and Costs as Percent of Payroll, Revenue, and Profit by
Industry, FY2017
----------------------------------------------------------------------------------------------------------------
Costs and transfers
Transfers Direct costs -----------------------------------------------
Industry (millions) (millions) As percent of As percent of As percent of
payroll revenue profit \a\
----------------------------------------------------------------------------------------------------------------
All............................. $1,282.70 $676.70 0.03% 0.01% 0.09%
Agriculture, forestry, fishing, 4.10 1.40 0.09 0.02 0.34
& hunting......................
Mining.......................... 11.90 3.50 0.02 0.00 0.08
Construction.................... 50.20 36.60 0.03 0.01 0.21
Manufacturing................... 125.60 46.00 0.03 0.00 0.05
Wholesale & retail trade........ 248.50 117.60 0.05 0.00 0.09
Transportation & utilities...... 44.50 21.80 0.03 0.01 1.46
Information..................... 48.90 21.80 0.03 0.01 0.08
Financial activities............ 134.90 79.60 0.03 0.01 0.04
Professional & business services 181.50 113.30 0.02 0.01 0.14
Education & health services..... 183.70 114.80 0.03 0.01 0.21
Leisure & hospitality........... 142.60 57.40 0.07 0.02 0.40
Other services.................. 71.60 45.20 0.08 0.02 0.46
Public administration........... 34.80 17.70 0.01 0.00 \b\
----------------------------------------------------------------------------------------------------------------
Sources: Private sector payroll and revenue data from 2012 Economic Census. State and local payroll data from
2014 Annual Survey of Public Employment and Payroll. State and local revenue data from 2012 Census of
Governments. Profit to revenue ratios calculated from 2012 Internal Revenue Service Corporation Income Tax
Returns.
\a\ Profit data based on corporations only.
\b\ Profit is not applicable for public administration.
Although labor market conditions vary by Census Region and
industry, the impacts from updating the standard salary level and the
HCE compensation level do not unduly affect any of the regions or
industries. The proportion of total costs and transfers in each region
is fairly consistent with the proportion of total workers in each
region. Additionally, the estimated costs and transfers from this Final
Rule are very small relative to current payroll or current revenue--
less than a tenth of a percent of payroll and less than three-
hundredths of a percent of revenue in each region and in each industry.
vi. Deadweight Loss
Deadweight loss (DWL) occurs when a market operates at less than
optimal equilibrium output. This typically results from an intervention
that sets, in the case of a labor market, wages above their equilibrium
level. While the higher wage results in transfers from employers to
workers, it also often causes a decrease in the total number of labor
hours that are being purchased on the market. DWL is a function of the
difference between the wage employers were willing to pay for the hours
lost and the wage workers were willing to take for those hours. In
other words, DWL represents the total loss in economic surplus
resulting from a ``wedge'' between the employer's willingness to pay
and the worker's willingness to accept. DWL may vary in magnitude
depending on market parameters, but is typically small when wage
changes are small or when labor supply and labor demand are relatively
price (wage) inelastic. The estimate of DWL assumes the market meets
the theoretical conditions for an efficient market in the absence of
this intervention (e.g., all conditions of a perfectly competitive
market hold: full information, no barriers to entry, etc.). Since labor
markets are generally not perfectly competitive, the Department's
estimate of DWL is likely an overestimate.
The DWL resulting from this Final Rule was estimated based on the
average decrease in hours worked and increase in hourly wages
calculated in section VI.D.iv. As the cost of labor rises due to the
requirement to pay the overtime premium, the demand for overtime hours
decreases, which results in fewer hours of overtime worked. To
calculate the DWL, the following values must be estimated:
The increase in average hourly wages for affected EAP
workers (holding hours constant),
the decrease in average hours per worker, and
the number of affected EAP workers.
Only 50 percent of Type 2 workers with overtime hours worked in the
survey week (those who work regular or predictable occasional overtime)
and Type 3 workers are included in the DWL calculation because the
other workers either do not work overtime (Type 1), continue to work
the same number of overtime hours (Type 4), or their employers are
unable to adjust their hourly wage because their overtime hours worked
are unpredictable (the other 50 percent of Type 2 workers). As
described above, after taking into account a variety of potential
responses by employers, the Department estimated the average wage
change for affected EAP workers whose hours change. Workers impacted by
the change in the standard salary level are considered separately from
workers impacted by the change in the HCE compensation level.
For workers affected by the revised standard salary level, and who
experience a change in hours, average wages (including overtime) will
increase by $0.69 per hour prior to employer hour adjustments (Table
31). This represents the size of the wedge between labor supply and
labor demand. Average hours will fall by 0.40 per week. These changes
result in an average DWL of $0.14 per week per Type 2 (the 50 percent
of CPS occasional overtime workers who work foreseeable overtime) and
Type 3 worker. An estimated 803,500 workers will be eligible for the
overtime premium on some of their hours worked each week after employer
adjustments are taken into account. Multiplying the $0.14 per worker
per week estimate by the number of affected workers results in a total
DWL of $5.8 million in the first year of this Final Rule attributable
to the revised standard salary level (803,500 workers in DWL analysis x
$0.14 per worker per week x 52 weeks).
For workers affected by the revised HCE compensation level and who
experience a change in hours, the average hourly wage will increase by
$2.01 and average hours worked will fall by 0.37 per week. This results
in an
[[Page 32499]]
average DWL of $0.38 per week for each of the estimated 31,200 workers
affected by the compensation level who will see their hours fall.
Multiplying this per worker estimate by the number of affected workers
results in a DWL of $610,000 in the first year attributable to the HCE
component of this Final Rule (31,200 workers in DWL analysis x $0.38
per worker x 52 weeks). Thus, total DWL is estimated to be $6.4 million
in Year 1, which is small in comparison to the size of the costs and
transfers associated with this proposal.\218\
---------------------------------------------------------------------------
\218\ Very few commenters addressed the Department's DWL
calculation in the NPRM. The FL DEO derived their own estimate for
deadweight loss in Florida, which if applied nationally would be
significantly larger than the Department's DWL estimate. However, FL
DEO did not explain how they arrived at their estimate, nor did they
note any specific problems with our calculation. Therefore, the
Department has not adjusted our DWL calculations. Additionally, FL
DEO's concern that the Department's DWL estimate is too low because
it is ``only $1.58 per worker, per year'' divides the DWL costs
across all affected workers. If instead these costs are spread
across only those workers whose hours or wages change, the cost per
worker is larger.
Table 31--Summary of Deadweight Loss Component Values in Year 1
------------------------------------------------------------------------
HCE
Component Standard Compensation
salary level level
------------------------------------------------------------------------
Average hourly wages (holding hours
constant)
Pre................................. $14.86 $42.84
Post................................ $15.55 $44.85
Change.............................. $0.69 $2.01
Average overtime hours
Pre................................. 10.60 12.03
Post................................ 10.20 11.65
Change.............................. -0.40 -0.37
Affected EAP workers.................... 803,476 31,225
DWL
DWL per worker per week............. $0.14 $0.38
Total annual DWL (millions)..... $5.78 $0.61
------------------------------------------------------------------------
Note: DWL analysis is limited to workers who experience hour adjustments
in the reference week (50 percent of Type 2 workers identified in the
CPS and Type 3).
Some commenters expressed concern that the rulemaking will lead to
a reduction in employment or an increase in unemployment. For example,
the National Newspaper Association stated that 41 percent of surveyed
members said the proposal would ``lead to an overall loss of jobs in
the community,'' and AGC reported 33 percent of surveyed members
``expect some positions to be eliminated.'' See also Erie Sport Store;
Michigan Federation for Children and Families; Texas Society of CPAs;
Virginia Veterinary Medical Association. One small business owner
wrote: ``If I find that I am forced to pay additional money to my
existing staff . . . [m]y current employees will continue to work
unwanted hours while another person continues to be unemployed.'' The
Department acknowledges that by increasing the cost of labor, the total
number of labor hours demanded is expected to fall. However, the
Department has estimated the net decrease in labor hours to be small
(334,000 hours per week in Year 1). We expect this reduction in hours
to be largest for affected workers who presently work a significant
amount of overtime and who will become nonexempt. We believe that most
of the reduction in these employees' hours due to the increased
marginal cost of their labor will be offset by increased hours for
other workers. This may be in the form of hiring of additional staff or
increased hours for part-time or exempt employees. By increasing the
marginal cost of labor for newly overtime-eligible workers, employers
have an incentive to avoid overtime hours worked by newly overtime-
eligible workers, spreading work to other employees (which may increase
employment), or making other production-related decisions. These
effects may offset DWL, and, as discussed later, may affect social
welfare. However, we do not attempt to quantify those effects here.
If firms increase workers' pay to meet the new salary level, rather
than paying overtime, however, then we may see these particular workers
working longer hours to justify their increase in pay. This could
consequently limit the spread of employment that is traditionally
recognized as a goal of overtime laws. The Department acknowledges this
may occur in some instances, however, we do not attempt to estimate
transfers between workers due to uncertainty concerning the prevalence
and magnitude of such transfers.
vii. Benefits and Effects Not Discussed Elsewhere
In general, benefits of the rulemaking were not quantified due to
data limitations. However, these benefits are discussed qualitatively.
Market inefficiencies may be reflected in employees' choices
concerning earnings and hours worked. These inefficiencies may result
from the presence of information asymmetries,\219\ labor market
immobility, and other forms of labor market imperfection that lead to
outcomes that differ from models that assume competitive labor markets.
For example, empirical research by Wozniak and others \220\ indicate
that a variety of factors (e.g., educational endowment, exposure to
local economic shocks early in work history, and lower earnings) are
associated with less effective job search networks and lower labor
market mobility. These may arise from a variety of sources, such as
less sophistication in eliciting outside offers or less effective
search heuristics. Salaried workers at the lower end of the
compensation scale are more vulnerable to these inefficiencies than
those at the
[[Page 32500]]
higher end. Such workers are also more likely to be functioning in
those parts of the labor market more impacted by trade, technological
change, and other factors that may lead to a greater number of job
seekers than job vacancies. Given these well documented market
imperfections, tailored government intervention can result in social
benefits. In a frictionless labor market, we would expect workers to
find jobs where, at the margin, their compensation is equivalent to the
value of their leisure time. However, labor market frictions of the
sort discussed above diminish mobility and therefore lead to suboptimal
outcomes for overtime exempt workers with few outside options,
specifically, in them having excessive hours of work. In the presence
of labor market friction, tailored government intervention can make
these workers better off from a social welfare perspective.
---------------------------------------------------------------------------
\219\ Stiglitz, Joseph E. (2000) ``The Contributions of the
Economics of Information to Twentieth Century Economics'', Quarterly
Journal of Economics 115 (4): 1441-1478.
\220\ Wozniak, Abigail (2010) ``Are College Graduates More
Responsive to Distant Labor Market Opportunities?'' Journal of Human
Resources 45(3): 994-970. Bound, John and Harry Holzer (200)
``Demand Shifts, Population Adjustments, and Labor Market Outcomes
during the 1980s'' Journal of Labor Economics 18(1): 20-54.
Greenwoods, Michael, J (1997) ``Internal Migration in Developed
Countries'' in Handbook of Population and Family Economics, ed Mark
Rosenzweig and Oded Stark. New York: Elsevier Science.
---------------------------------------------------------------------------
1. Strengthening Overtime Protection for Other Workers
In addition to the 4.2 million affected EAP workers who will be
newly eligible for overtime protection (absent employer response to
increase the salary level to retain the exemption), overtime protection
will be strengthened for an additional 8.9 million salaried workers who
earn between the current salary level of $455 per week and the updated
salary level of $913 per week. These workers, who were previously
vulnerable to misclassification through misapplication of the duties
test, will now be automatically overtime protected because their
salaries fall below the new salary level and therefore they will not be
subject to the duties test. These 8.9 million workers include:
5.7 million salaried white collar workers who are at
particular risk of being misclassified because they currently pass the
salary level test but do not satisfy the duties test; and
3.2 million salaried workers in blue collar occupations
whose overtime protection will be strengthened because their salary
will fall below the new salary threshold.\221\ (Identification of blue
collar workers is explained in section VI.B.iv).
---------------------------------------------------------------------------
\221\ Some workers in this group may be overtime exempt due to
another non-EAP exemption.
---------------------------------------------------------------------------
Although these workers are currently entitled to minimum wage and
overtime protection, their protection is better assured with the
updated salary level. The salary level test is considered a bright-line
test because it is immediately clear to employers and employees alike
whether or not a worker passes the salary threshold. The duties test
(which is the reason employers cannot currently claim the EAP exemption
for the above workers) is more subjective and therefore harder to
apply. An outdated salary level reduces the effectiveness of this
bright-line test. At the new salary level, the number of overtime-
eligible white collar salaried workers earning at or above the salary
level will decrease by 5.7 million, and if we use our estimate of
misclassification of 12.8 percent, then an estimated 732,000 of these
workers are currently entitled to overtime protection but their
employers do not recognize them as such. Therefore, increasing the
salary level is expected to result in less worker misclassification.
These reductions will have the greatest impact on workers concentrated
in certain occupations and industries as shown in Table 10. Employers
will be able to more readily determine their legal obligations and
comply with the law. The resulting effects, although unquantified,
would be categorized into costs (e.g., increased managerial effort),
transfers (e.g., increased payments from employers to workers) and
benefits in the same manner as effects are categorized in the analysis
of EAP workers who will be newly eligible for overtime protection.
2. Reduction in Litigation
Reducing the number of white collar employees for whom a duties
analysis must be performed in order to determine entitlement to
overtime will also reduce some types of litigation related to the EAP
exemption. As previously discussed, employer uncertainty about which
workers should be classified as EAP exempt has contributed to a sharp
increase in FLSA lawsuits over the past decade. Much of this litigation
has involved whether employees who satisfy the salary level test also
meet the duties test for exemption. See, e.g, Soehnle v. Hess Corp.,
399 F. App'x 749 (3d Cir. 2010) (gas station manager earning
approximately $654 per week satisfied duties test for executive
employee); Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th
Cir. 2008) (store managers earning an average weekly salary of up to
$706 did not satisfy duties test for executive exemption).
Setting an appropriate salary level for the standard duties test,
and maintaining the salary level with automatic updates, will restore
the test's effectiveness as a bright-line method for separating
overtime-protected workers from those who may be bona fide EAP workers,
and in turn decrease the litigation risk created when employers must
apply the duties test to employees who generally are not performing
bona fide EAP work. This will vastly reduce legal challenges regarding
the duties test for employees earning between the current salary level
($455) and the updated level ($913). See, e.g., Little v. Belle Tire
Distribs., Inc., 588 F. App'x 424 (6th Cir. 2014) (applicability of
administrative or executive exemption to tire store assistant manager
earning $1,100 semi-monthly); Taylor v. Autozone, Inc., 572 F. App'x
515 (9th Cir. 2014) (applicability of executive exemption to store
managers earning as little as $800 per week); Diaz v. Team Oney, Inc.,
291 F. App'x. 947 (11th Cir. 2008) (applicability of executive duties
test to pizza restaurant assistant manager earning $525 per week).
Setting the salary level test at the 40th percentile of weekly earnings
of full-time salaried workers in the lowest-wage Census Region ($913)
will alleviate the need for employers to apply the duties test in these
types of cases, which is expected to result in decreased litigation as
employers will be able to determine employee exemption status through
application of the salary level test without the need to perform a
duties analysis. See Weiss Report at 8 (explaining that the salary
tests ``have amply proved their effectiveness in preventing the
misclassification by employers of obviously nonexempt employees, thus
tending to reduce litigation. They have simplified enforcement by
providing a ready method of screening out the obviously nonexempt
employees, making an analysis of duties in such cases unnecessary.'')
The International Association of Fire Fighters (IAFF) concurred,
stating that ``reducing the number of employees for whom the duties
test must be applied will significantly reduce litigation related to
the EAP exemption.'' Other commenters agreed that the proposed rule
would make the exemption easier to apply, resulting in savings as a
result of reduced litigation. See Comment from 57 labor law professors;
American Federation of State, County and Municipal Employees; NELP.
Another attorney, commenting on his own, similarly stated that the rule
would reduce the potential for the misclassification of employees that
often leads to litigation.\222\
---------------------------------------------------------------------------
\222\ Some commenters, including the National Association of
Manufacturers and Jackson Lewis, expressed concern that the
rulemaking will increase rather than decrease litigation costs
because there will be a ``spike in employees who were unhappy about
being reclassified'' and disputes about issues such as what is
compensable time, the accuracy of time records, and compliance with
rest/meal period requirements. See also Wage and Hour Defense
Institute. As a number of employee advocates commented, and as the
Department explained in section IV.A.iv., we disagree with these
employer commenters, and believe an increased salary level that will
once again serve as a clear and efficient line of demarcation will
reduce litigation.
---------------------------------------------------------------------------
[[Page 32501]]
The size of the potential social benefits from reducing litigation
can be illuminated with the following estimation method. The Department
estimated the share of FLSA cases that could potentially be avoided due
to the revised salary levels. The Department used data from the U.S.
Court's Public Access to Court Electronic Records (PACER) system and
the CPS to estimate the percent of FLSA cases that concern EAP
exemptions and are likely to be affected by the final rule and data
from a published study of the cost of civil litigation to determine the
potential benefits of reduced litigation arising from the final rule.
In order to determine the potential number of cases that would be
affected by the Final Rule, the Department obtained a list of all FLSA
cases closed in 2014 from PACER (8,256 cases). From this list the
Department selected a random sample of 500 cases. For each case in this
sample, relevant information was reviewed and the Department identified
the cases that were associated with the EAP exemption. The Department
found that 12.0 percent of FLSA cases (60 of 500) were related to the
EAP exemptions.\223\ Next the Department determined what share of these
cases could potentially be avoided by an increase in the standard
salary level to $913 and an increase in the annual HCE compensation
level to $134,004.
---------------------------------------------------------------------------
\223\ It was not always clear whether the case involved the EAP
exemption; when uncertain the Department classified the case as not
being related to the EAP exemption to produce a conservative
estimate. For example, in cases with multiple allegations (including
both EAP and non-EAP issues) the Department classified the case as
not being related to the EAP exemption.
---------------------------------------------------------------------------
The Department estimated the share of EAP cases that may be avoided
due to the Final Rule by using data on the salaried earnings
distribution from the CPS to determine the share of potentially
avoidable EAP cases where workers earn at least $455 but less than $913
per week or at least $100,000 but less than $134,004 annually. From
CPS, the Department selected white collar, nonhourly workers as the
appropriate reference group for defining the earnings distribution
instead of exempt workers because of the simple fact that if a worker
is litigating his or her exempt status, then we do not know if that
worker is exempt or not. Based on this analysis, the Department
determined that 35.8 percent of white collar nonhourly workers had
earnings within these ranges. Applying these findings to the 12 percent
of cases associated with the EAP exemption yields an estimated 4.3
percent of FLSA cases may be avoidable.\224\ The assumption underlying
this method is that workers who claim they are misclassified as EAP
exempt have a similar earnings distribution as all white collar
nonhourly workers.\225\
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\224\ If we use the pool of all exempt workers as the reference
group, then 32.8 percent of salaried workers earn within these
income ranges and an estimated 3.9 percent of FLSA cases may be
avoidable (32.8 percent x 12 percent).
\225\ There are several reasons why this assumption may not
hold. First, workers with lower earnings are less likely to pass the
duties test, and thus may be more likely to be misclassified. This
may result in an underestimate of the share of cases associated with
workers earning between $455 and $913. Conversely, workers with
higher earnings may be more likely to bring a lawsuit because
lawyers may be more likely to take the case. This may result in an
overestimate of the share of cases associated with workers earning
between $455 and $913.
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After estimating the share of cases that might be avoidable, the
Department quantified the associated benefit regarding the cost of
litigation. The Department drew on a recent study conducted by the
Court Statistics Project.\226\ The study provides estimates of the
costs of litigation related to employment cases, based on time for the
various steps of the litigation process (e.g., case initiation,
discovery, settlement, trial, etc.) and the costs of staff in providing
these activities (e.g., paralegals, junior and senior attorneys, etc.).
It then provides quartile estimates (25th percentile, median, and 75th
percentile) based on the survey data. The study finds that the median
cost for employment litigation is $88,000. Applying this figure, the
Department estimated avoided litigation costs resulting from the rule
may total approximately $31.2 million per year.\227\
---------------------------------------------------------------------------
\226\ Hannaford-Agor, P. and Waters, N. L. (2013). Estimating
the Cost of Civil Litigation. Court Statistics Project, 20(1), 1-8.
Additional data on the distribution of litigation costs can be found
at www.ncsc.org/clcm.
\227\ The cost of litigation is estimated to be $53,680 if the
case does not go to trial; according to Court Statistics Project, 39
percent of litigation costs are associated with trials ($88,000x(1-
0.39)). Conversely, litigation costs might be significantly higher
than estimated here since 25 percent of trial cases exceed costs of
$210,800.
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3. Uncertainty About Future Overtime Hours and Pay
This Final Rule may have an impact on newly overtime-protected
employees who are not currently working much or any overtime, but who
will now be entitled to minimum wage and overtime pay protections.
These workers may face a lower risk of being asked to work overtime in
the future, because they are now entitled to an overtime premium, which
could reduce their uncertainty and improve their welfare if they do not
desire to work overtime. Additionally, if they are asked to work
overtime, they will be compensated for the inconvenience with an
overtime premium.\228\
---------------------------------------------------------------------------
\228\ Although this statement holds as a comparison between work
hours below and above 40 per week, it is not universally valid as a
comparison between the state of the world with the rule and the
state of the world without the rule.
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Economic theory suggests that workers tend to assign monetary
values to risk or undesirable job characteristics, as evidenced by the
presence of compensating wage differentials for undesirable jobs,
relative to other jobs the worker can perform in the marketplace.\229\
To the extent a compensating wage differential exists, compensation may
decrease with the reduction in uncertainty.\230\ For this reason,
overall compensation would be expected to decrease for workers whose
uncertainty decreases. Employees who prefer the reduced uncertainty to
the wage premium would experience a net benefit of the rule, and
employees who prefer the wage premium to the reduced uncertainty would
experience a net detriment as a result of the rule. The Department
believes that attempting to model the net monetary value of changes in
uncertainty is not feasible due to its heavy reliance on data that are
not readily available, and the potentially questionable nature of the
resulting estimates.
---------------------------------------------------------------------------
\229\ For a discussion of compensating wage differentials, see
Gronberg, T. J., & Reed, W. R. (1994). Estimating Workers' Marginal
Willingness to Pay for Job Attributes using Duration Data. Journal
of Human Resources, 29(3), 911-931.
\230\ In this case, the size of the compensating wage
differential is a function of the likelihood of working overtime and
the amount of overtime worked. If the probability of working
overtime is small then the wage differential may not exist.
---------------------------------------------------------------------------
4. Work-Life Balance
Due to the increase in marginal cost for overtime hours for newly
overtime-eligible workers, employers will demand fewer hours from some
of the workers affected by this rule.\231\ The estimated transfer
payment does not take into account the benefit to some workers of
working fewer hours in exchange for more (or equal) pay. Therefore, an
additional potential benefit of this Final Rule is the increase in time
off for some affected EAP workers. On average, affected EAP workers
were estimated to work 4.7 minutes less per week after the Final
[[Page 32502]]
Rule. The effect is much more pronounced when limited to just those
workers whose hours are adjusted in a given week (the 50 percent of
Type 2 workers who work occasional overtime and are identified in the
CPS data and all Type 3 workers); they would on average work 24.0
minutes less per week after the Final Rule. The additional time off may
potentially make these workers better off.
---------------------------------------------------------------------------
\231\ The Department recognizes that not all workers would
prefer to work fewer hours and thus some of these workers might
experience an adverse impact. The Department has no basis for
estimating this potential negative impact.
---------------------------------------------------------------------------
However, employers may respond to the rule by increasing hours of
work for some other employees--especially those who pass the duties
test and whose salaries are either already over the proposed threshold
or will be adjusted to be so. For these employees, work-life balance
may be harmed by the rule, in some cases without increased pay. For EAP
employees whose work hours and pay are both reduced, they may seek
second jobs in order to restore pay to its original level, thus
similarly impacting work-life balance. The impact of this possible
effect is unquantified.
Several commenters stated that by reducing excessive overtime the
rule will improve work-life balance for employees. The Coalition on
Human Needs asserted that one outcome of the proposed rule would be
that ``[e]mployers . . . will have to acknowledge the value of the 40-
hour workweek by . . . limiting workers['] [hours], thus giving them
more time with their families.'' See also Center for American Progress;
EPI. According to the Center for Effective Government ``[the] proposed
rule would provide more time protections to the parents of over an
estimated 9 million children.'' \232\
---------------------------------------------------------------------------
\232\ Conversely, some commenters believe the rule will hurt
work-life balance because workers who become nonexempt may lose
flexibility in setting their schedules (see section IV.A.iv.)
---------------------------------------------------------------------------
Empirical evidence shows that workers in the United States
typically work more than workers in other comparatively wealthy
countries.\233\ Although estimates of the actual level of overwork vary
considerably, executive, administrative, and professional occupations
have the highest percentage of workers who would prefer to work fewer
hours compared to other occupational categories.\234\ Therefore, the
Department believes that the Final Rule may result in increased time
off for a group of workers who may prefer such an outcome. However, the
empirical evidence does not allow us to estimate how many workers would
prefer fewer hours or how much workers value this additional time off,
so it is difficult to monetize the benefit they may receive.
---------------------------------------------------------------------------
\233\ For more information, see OECD series, average annual
hours actually worked per worker, available at: http://stats.oecd.org/index.aspx?DataSetCode=ANHRS.
\234\ Hamermesh, D.S., Kawaguchi, D., Lee, J. (2014). Does Labor
Legislation Benefit Workers?
Well-Being after an Hours Reduction. IZA DP No. 8077.
Golden, L., & Gebreselassie, T. (2007). Overemployment
Mismatches: The Preference for Fewer Work Hours. Monthly Labor
Review, 130(4), 18-37.
Hamermesh, D.S. (2014). Not Enough Time? American Economist,
59(2).
---------------------------------------------------------------------------
Furthermore, not all workers would prefer to work fewer hours and
thus some of these workers might experience an adverse impact. In
addition, the estimated work loss represents an average over all
affected workers, and some workers may experience a larger reduction in
hours.\235\
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\235\ It is possible that some employers may choose to eliminate
all overtime for affected workers and hire additional workers or
spread the work to existing employees to replace the lost hours. The
potential for this adjustment is uncertain, and the Department has
found no studies that estimate the potential magnitude of this
effect. In addition, an employer may be limited in his or her
ability to make such adjustments; many affected employees work only
a few hours of overtime each week; affected employees' tasks may not
be easily divisible; and hiring new workers and/or managing
different work flows will impose additional costs on the employer
that will offset the savings from avoiding paying the overtime
premium.
---------------------------------------------------------------------------
5. Health
Working long hours is correlated with an increased risk of injury
or health problems.\236\ Therefore, by reducing overtime hours, some
affected EAP workers' health may improve. This would benefit the
workers' welfare, their families' welfare, and society since fewer
resources would need to be spent on health. Health has also been shown
to be highly correlated with productivity.\237\ Some affected employees
who work large amounts of overtime may see a significant health impact;
for example, workers at the 75th and 90th percentiles of hours worked
report working 15 and 20 hours of overtime hours per week,
respectively. On average, 25 percent of currently exempt employees who
work overtime work at least 10 hours of overtime per week. EPI, NELP,
and other commenters noted the poor health effects of working long
hours. The beneficial health effects of reduced hours for some newly
overtime-eligible employees may be partially offset to the extent that
hours worked by other employees, especially those who are overtime
exempt, increase. These effects have not been quantified.
---------------------------------------------------------------------------
\236\ Keller, S. M. (2009). Effects of Extended Work Shifts and
Shift Work on Patient Safety, Productivity, and Employee Health.
AAOHN Journal, 57(12), 497-502. Kivim[auml]ki, M. (2015). Long
Working Hours and Risk of Coronary Heart Disease and Stroke: A
Systematic Review and Meta-Analysis of Published and Unpublished
Data for 603,838 Individuals. The Lancet, 386(10005), 1739-1746.
\237\ Loeppke, R., Taitel, M., Richling, D., Parry, T., Kessler,
R., Hymel, P., et al. (2007). Health and Productivity as a Business
Strategy. Journal of Occupational and Environmental Medicine, 49(7),
712-721.
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6. Increased Productivity
This Final Rule is expected to increase the marginal cost of some
workers' labor, predominately due to the overtime pay requirement since
almost all affected EAP workers already earn the federal minimum wage.
In light of the increased marginal cost of labor for newly overtime-
eligible workers, employers may organize workers' time more
efficiently, thus increasing productivity. Other channels that may
increase marginal productivity include: Worker health (which was
addressed above), reduced turnover, and other effects described by
efficiency wage theory. Any such net gains would benefit both employers
and workers.
Efficiency wages: By increasing earnings this Final Rule may
increase a worker's productivity by incentivizing the worker to work
harder. Thus the additional cost to firms may be partially offset by
higher productivity. In particular, the estimated managerial costs
associated with greater monitoring effort may be offset due to this
effect. A strand of economic research, commonly referred to as
``efficiency wages,'' considers how an increase in wages may be met
with greater productivity.\238\ However, this literature tends to focus
on firms voluntarily paying higher wages, and thus distinguishing
themselves from other firms. Because employer response to this
rulemaking will result in wage increases, extrapolating from efficiency
wage theory may not be appropriate to estimate the likely effects of
the rule.
---------------------------------------------------------------------------
\238\ Akerlof, G. A. (1982). Labor Contracts as Partial Gift
Exchange. The Quarterly Journal of Economics, 97(4), 543-569.
---------------------------------------------------------------------------
Some commenters discussed increased productivity as a benefit of
the rulemaking, including the AFL-CIO, the American Federation of
Teachers, and the IAFF. Individual comments submitted by the National
Women's Law Center asserted that paying workers well ``will lead to
increased productivity, employee loyalty and less worker turn-over''
and stated that ``the better you treat employees the better the quality
of the work they produced.''
Conversely, there are channels through which increasing overtime
pay may reduce productivity. For example, some overtime hours may be
spread to other workers. If the work requires significant project-
specific knowledge or
[[Page 32503]]
skills, then the new worker receiving these transferred hours may be
less productive than the first worker, especially if there is a steep
learning curve. However, having another worker versed in the project
may be beneficial to the firm if the first worker leaves the firm or is
temporarily absent (e.g., sick) or by providing benefits of teamwork
(e.g., facilitating information exchange).\239\ The relative magnitudes
of rule-induced increases and decreases in productivity have not been
quantified.
---------------------------------------------------------------------------
\239\ Some commenters believe productivity would decline. See
section VI.D.iii.
---------------------------------------------------------------------------
Reduction in turnover: Research demonstrates a correlation between
earnings and employee turnover--as earnings increase, employee turnover
decreases.240 241 Reducing turnover may increase
productivity, at least partially because new employees have less firm-
specific capital (i.e., skills and knowledge that have productive value
in only one particular company) and thus are less productive and
require additional supervision and training.\242\ In short, replacing
experienced workers with new workers decreases productivity, and
avoiding that will increase productivity. Reduced turnover should also
reduce firms' hiring and training costs. As a result, even though
marginal labor costs rise, they may rise by less than the amount of the
wage change because the higher wages may be offset by lower turnover
rates, increased productivity, and reduced hiring costs for firms.
---------------------------------------------------------------------------
\240\ Howes, Candace. (2005). Living Wages and Retention of
Homecare Workers in San Francisco. Industrial Relations, 44(1), 139-
163. Dube, A., Lester,T.W., & Reich, M.. (2014). Minimum Wage
Shocks, Employment Flows and Labor Market Frictions. IRLE Working
Paper #149-13.
\241\ Note that this literature tends to focus on changes in
earnings for a specific sector or subset of the labor force. The
impact on turnover when earnings increase across sectors (as would
be the case with this regulation) may be smaller.
\242\ Argote, L., Insko, C. A., Yovetich, N., & Romero, A. A.
(1995). Group Learning Curves: The Effects of Turnover and Task
Complexity on Group Performance. Journal of Applied Social
Psychology, 25(6), 512-529. Shaw, J. D. (2011). Turnover Rates and
Organizational Performance: Review, Critique, and Research Agenda.
Organizational Psychology Review, 1(3), 187-213.
---------------------------------------------------------------------------
It is difficult to estimate the impact of reduced turnover on
worker productivity and firm hiring costs. The potential reduction in
turnover is a function of several variables: the current wage, hours
worked, turnover rate, industry, and occupation. Additionally,
estimates of the cost of replacing a worker who quits vary
significantly. Therefore, the Department does not quantify the
potential benefit associated with a decrease in turnover attributed to
this Final Rule.
7. Reduction in Social Assistance Expenditures
The transfer of income resulting from this Final Rule may result in
reduced need for social assistance (and by extension reduced social
assistance expenditures by the government). A worker earning the
current salary level of $455 per week earns $23,660 annually. If this
worker resides in a family of four and is the sole earner, then the
family will be considered impoverished. This makes the family eligible
for many social assistance programs. Thus, transferring income to these
workers may reduce eligibility for government social assistance
programs and government expenditures. Several commenters, including
Court Appointed Special Advocates and some individual commenters,
agreed that the rulemaking would reduce unemployment insurance and
social welfare costs.
Benefits for which currently exempt EAP workers may qualify include
Medicaid, the Supplemental Nutrition Assistance Program (SNAP), the
Temporary Assistance for Needy Families (TANF) program, the Special
Supplemental Nutrition Program for Women, Infants, and Children (WIC),
and school breakfasts and lunches.\243\ Quantifying the impact of this
Final Rule on government expenditures is complex and thus not estimated
here. In order to conduct such an analysis, the Department would need
estimates of the transfer per worker, (as noted earlier in this
analysis, these estimates average $13.91 per week across affected
workers who work overtime and $5.48 across all affected workers), his
or her current income level, other sources of family income, number of
family members, state of residence, and receipt of aid.
---------------------------------------------------------------------------
\243\ Earned Income Tax Credit (EITC) expenditures could either
increase or decrease depending on whether workers are on the
``phase-in'' or the ``phase-out'' portion of the EITC-eligibility
profile.
---------------------------------------------------------------------------
8. Employment Spreading
Because employers will have an incentive to reallocate excessive
overtime hours in some cases (for instance, amongst employees who work
so many hours that any increase would lead to minimum wage violations),
the Final Rule may result in expanded employment opportunities. Several
commenters predicted such an expansion. The Society of St. Vincent de
Paul stated that that there will be positive spillover effects that
will result in ``opportunities for new employment for others to fill
the hours previously treated as non-compensable but mandatory
managerial duties.'' The Washington Center for Equitable Growth
commented that the Department understated the benefits of the
rulemaking ``by failing to account for employers' tendency to hire
additional workers and to schedule non-overtime work in response to the
rule change.''
Two estimates of job creation were referenced by commenters. The
Washington Center for Equitable Growth referenced an analysis by
Goldman Sachs estimating the impact of the proposed change in the
standard salary level on employment.\244\ Goldman Sachs concluded that
an increase in the salary threshold from $455 to $970 would result in a
total of 120,000 new hires.\245\ Legal Aid Society-Employment Law
Center referenced a publication by the NRF which, relying on data from
Oxford Economics, estimated that a salary threshold of $970 per week
would create 117,100 part-time jobs in the retail industry alone.\246\
While the Department has some concerns with Oxford Economics' analysis,
as discussed in section VI.D.iii., we agree that in some instances
employers may hire additional employees to work hours previously worked
by newly nonexempt employees. However, as noted earlier, to the extent
the individuals hired for the new jobs are already employed elsewhere,
the number of individuals who are employed may not increase by as much
as the number of jobs increases. Further, to the extent that employers
shift overtime hours of newly overtime-eligible employees to part-time
or overtime exempt employees who are already on staff, hiring will not
increase.
---------------------------------------------------------------------------
\244\ Goldman Sachs. (2015). US Daily: The New Federal Overtime
Rules: A Greater Effect on Payrolls than Pay.
\245\ Goldman Sachs based its analysis on a difference-in-
difference-in-difference (DDD) estimate of the impact of the 2004
regulation. This method assumes the 2004 salary level change is
comparable to the proposed salary level change, the short duties
test is similar to the standard duties test, and all reduced hours
will be transferred to new hires. Accordingly, the Department did
not conduct a similar analysis in this Final Rule.
\246\ National Retail Federation. (2015). The Hidden Cost Of
Overtime Expansion.
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9. Macroeconomic Benefits
Several commenters asserted that the regulations will benefit the
economy as a whole. United Steel Workers stated that ``[w]hen the
workers have more money to spend, businesses have more customers and
more incentive to hire and invest.'' Democracy for America commented
the proposed rule ``would go a long way in addressing [wage] disparity,
strengthening our economy by providing more income to households that
they can turn around and spend at businesses, creating new jobs and
growing our GDP.'' There are potential
[[Page 32504]]
secondary effects (both costs and benefits) of the transfer due to the
potential difference in the marginal utility of income and the marginal
propensity to consume between workers and business owners. The transfer
may result in societal gain during periods when the economy is
operating below potential to the extent that transferring income to
workers with a relatively high marginal propensity to consume results
in a larger multiplier effect and impact on GDP. The Department did not
attempt to quantify these potential impacts.
viii. Regulatory Alternatives
The Department has chosen to update the standard salary level to
the 40th percentile of weekly earnings of all full-time salaried
workers in the South. As previously discussed, the Department
considered a range of alternatives before selecting this methodology
and data set. Table 32 presents the alternative salary and compensation
levels, the number of affected workers, and the associated costs and
transfers. Regulatory familiarization costs are not included because
they do not vary over the alternatives.
Alternative 1 inflates the 2004 standard salary level ($455) to
FY2015 dollars using the CPI-U. This is $570 per week. At this salary
level 538,000 workers would be affected in Year 1, imposing direct
adjustment and managerial costs of $47.9 million, transferring $111.4
million in earnings from employers to employees, and resulting in DWL
of $0.4 million. Alternative 2 sets the salary level using the 2004
Final Rule method (the 20th percentile of weekly earnings of full-time
salaried workers in the South and retail), resulting in a salary level
of $596 per week. At this salary level 683,000 workers would be
affected in Year 1, imposing direct adjustment and managerial costs of
$61.3 million, transferring $145.4 million in earnings from employers
to employees, and resulting in DWL of $0.5 million. Alternative 3 uses
the salary level based on the Kantor method for the long duties test,
resulting in a level of $684 per week. At this salary level 1.4 million
workers would be affected in Year 1, imposing direct adjustment and
managerial costs of $133.7 million, transferring $318.1 million in
earnings from employers to employees, and resulting in DWL of $1.6
million.
Alternative 4 uses the methodology proposed in the NPRM, setting
the standard salary level at the 40th percentile of weekly earnings of
full-time salaried workers nationally. For the fourth quarter of 2015
this yields a salary level of $972 per week. At this salary level 4.8
million workers would be affected; Year 1 adjustment and managerial
costs would equal $470.1 million, with transfers of $1.5 billion, while
DWL would equal $7.3 million. Alternative 5 sets the salary level using
the Kantor long test method but generates a level more appropriate to
the short duties test by multiplying the result times the average
historical ratio between the short and long test salary levels (as
explained in section VI.C.iii.). This results in a salary level of
$1,019 per week. At this salary level, 5.6 million workers are
affected, Year 1 adjustment and managerial costs are $541.2 million;
Year 1 transfers are $1.8 billion; and Year 1 DWL is $8.4 million.
Alternative 6 inflates the 1975 short duties test salary level using
the CPI-U to $1,100 per week in FY2015 dollars. At this salary level,
6.7 million workers are affected; Year 1 adjustment and managerial
costs are $665.4 million; Year 1 transfers are $2.4 billion; and Year 1
DWL is $11.7 million.
The Department also examined alternatives to the HCE compensation
level. HCE alternative 1 left the current $100,000 annual compensation
level unchanged. Therefore, no employer costs, transfers, or DWL are
associated with this alternative. HCE alternative 2 inflates the 2004
level using the CPI-U and sets the HCE annual compensation level at
$125,320 per year. This compensation level would affect 56,000 workers
in Year 1 (compared to 65,000 at the chosen compensation level), impose
adjustment and managerial costs on employers of $6.7 million, transfer
$72.2 million in earnings from employers to employees, and generate
$400,000 in DWL. HCE alternative 3 sets the HCE annual compensation
level at $149,894 per year, based upon using the same percentile of
full-time salaried workers as in the 2004 Final Rule. This compensation
level would affect 72,000 workers in Year 1, impose adjustment and
managerial costs on employers of $9.4 million, transfer $123.0 million
in earnings from employers to employees, and generate $800,000 in DWL.
Table 32--Updated Standard Salary and HCE Compensation Levels and Alternatives, Affected EAP Workers, Costs, and
Transfers, FY2017
----------------------------------------------------------------------------------------------------------------
Year 1 impacts (millions)
Affected EAP -----------------------------------------------
Alternative Salary level workers Adj. &
(1,000s) managerial Transfers DWL \b\
costs \a\
----------------------------------------------------------------------------------------------------------------
Standard Salary Level (Weekly)
----------------------------------------------------------------------------------------------------------------
Alt. #1: Inflate 2004 level..... $570 538 $47.9 $111.4 $0.4
Alt. #2: 2004 method............ 596 683 61.3 145.4 0.5
Alt. #3: Kantor long test level. 684 1,444 133.7 318.1 1.6
Final........................... 913 4,163 397.0 1,186.6 5.8
Alt. #4: Proposed............... 972 4,837 470.1 1,476.8 7.3
Alt. #5: Kantor short test...... 1,019 5,636 541.2 1,779.3 8.4
Alt. #6: Inflate 1975 short test 1,100 6,684 665.4 2,418.8 11.7
level..........................
----------------------------------------------------------------------------------------------------------------
HCE Compensation Level (Annually)
----------------------------------------------------------------------------------------------------------------
Alt. #1: No change.............. $100,000 0 .............. .............. ..............
Alt. #2: Inflate 2004 level..... 125,320 56 6.7 72.2 0.4
Final........................... 134,004 65 8.4 98.5 0.6
Alt. #3: 2004 percentile........ 149,894 72 9.4 123.0 0.8
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Regulatory familiarization costs are excluded because they do not vary based on the selected values of the
salary levels.
[[Page 32505]]
\b\ DWL was estimated based on the aggregate impact of both the minimum wage and overtime pay provisions. Since
the transfer associated with the minimum wage is negligible compared to the transfer associated with overtime
pay, the vast majority of this cost is attributed to the overtime pay provision.
ix. Automatic Updates
1. Background
Between periodic updates to the salary level, nominal wages
typically increase, resulting in an increase in the number of workers
qualifying for the EAP exemption, even if there has been no change in
their duties or real earnings. Thus, workers whom Congress intended to
be covered by the minimum wage and overtime pay provisions of the FLSA
may lose those protections. Automatically updating the standard salary
level allows this threshold to keep pace with changes in earnings,
allowing it to continue to serve as an effective dividing line between
potentially exempt and nonexempt workers. Furthermore, automatically
updating the standard salary level and the HCE compensation level will
provide employers more certainty in knowing that these levels will
change by a small amount on a regular basis, rather than the more
disruptive increases caused by much larger changes after longer,
uncertain increments of time. This will allow firms to better predict
short- and long-term costs and employment needs.
In this Final Rule, the Department is including in the regulations
a mechanism for automatically updating the salary levels every three
years. The Department will reset the standard salary level to keep it
at the 40th percentile of weekly wages of full-time salaried workers in
the lowest-wage Census Region (currently the South). The HCE annual
compensation level will be updated to keep it at the 90th percentile of
weekly wages of full-time salaried workers nationally.
2. Updating Methods Considered
In the NPRM the Department sought comments on whether to
automatically update the standard salary level and HCE total
compensation level using the Consumer Price Index for All Urban
Consumers (CPI-U), or using a fixed percentile of earnings. The CPI-U
is the most commonly used price index in the U.S. and is calculated
monthly by BLS. The CPI-U is the primary index used by the government
to index benefit payments, program eligibility levels, and tax
payments. The CPI-U holds quantities constant at base levels while
allowing prices to change. The quantities are fixed to represent a
``basket of goods and services'' bought by the average consumer.
Updating the salary levels based upon the growth rate of earnings
at a specified percentile of the weekly earnings distribution is
consistent with the Department's historical practice of using salary
level as a key criterion for the exemption. The growth rate of earnings
reflecting labor market conditions is an appropriate measure of the
relative status, responsibility, and independence that characterize
exempt workers. While earnings and prices generally mirror one another
over time, they do not change in tandem.
3. Comparison of Indices and Decision To Use Earnings Percentiles
As previously discussed, see section IV.E.iii., the Department
believes setting and updating the salary level using the same
methodology will best ensure that the salary level test effectively
differentiates between overtime-eligible white collar workers and
workers who may be bona fide EAP employees who are not entitled to
overtime and continues to work effectively with the duties test.
Accordingly, the Final Rule provides for updating both the standard
salary level and the HCE total compensation requirement using a fixed
percentile of weekly earnings (40th percentile of full-time workers in
the lowest-wage Census Region for the standard salary level; the
annualized value of the 90th percentile of full-time salaried workers
nationally for the HCE total compensation level).
While the Department has decided not to automatically update the
salary level using the CPI-U, we note that in recent years the CPI-U
has grown at a rate closely aligned with the 40th percentile of
earnings of full-time salaried workers in the South. Between FY2006 and
FY2015 the average annual growth rates for the 40th percentile in the
South and the CPI-U have been 2.1 percent and 1.8 percent,
respectively. The average growth rate at the 90th percentile of full-
time salaried earnings nationwide during the same period was 3.0
percent.
The Department compared the standard salary levels that would have
resulted from 1995 to 2015 if (1) the standard salary level was set
each year to the 40th percentile of weekly earnings of full-time
salaried workers in the South, and (2) the standard salary level was
set using the growth in the CPI-U (and setting the level in 2014 to
match the 40th percentile earnings level in the South, i.e., $913 per
week) (Figure 5). While not identical, the data show that these two
methods produced similar results.
[[Page 32506]]
[GRAPHIC] [TIFF OMITTED] TR23MY16.008
4. Concerns With Use of Fixed Earnings Percentile as Automatic Updating
Methodology
As discussed in detail in section IV.E.iii., some commenters
expressed concern that automatically updating the salary level using a
fixed percentile of earnings would result in the salary levels growing
at too quick a rate. See, e.g., American Bankers Association; AIA-PCI ;
Chamber. Specifically, these commenters stated that if the standard
salary level is set at a fixed percentile of earnings of full-time
salaried workers, and some or all of the newly nonexempt workers are
converted to hourly status and thus removed from the data set, earnings
at that 40th percentile of salaried workers will quickly rise solely
due to the exclusion of these hourly workers (an effect many commenters
representing employers referred to as ``ratcheting''). Commenters
asserted that this may cause growth in the 40th percentile of full-time
salaried workers to no longer reflect prevailing economic conditions.
Claims that automatic updating using the fixed percentile approach
will lead to the rapid escalation of the salary level are based
primarily on the assumption that employers will respond to this
rulemaking by converting newly nonexempt workers to hourly pay status.
However, the Department believes these concerns are overstated because
many affected EAP workers who are reclassified as nonexempt are likely
to remain salaried as: (1) An analysis of the 2004 salary level updates
did not indicate significant numbers of workers were converted to
hourly pay; and (2) an analysis of updates in California's higher
salary level did not indicate significant numbers of workers were
reclassified as hourly. In any event, the Department's modeling of the
impact of automatic updating shows that any potential ``ratcheting''
effect that may occur would be small, largely because newly nonexempt
workers compose a small percentage of the pool of full-time nonhourly
workers in the dataset used to establish the salary level.
The analyses below are based on CPS MORG data. As acknowledged in
the NPRM, salary status for CPS respondents cannot definitively be
determined because workers who indicate they are paid on a salary basis
or on some basis other than hourly are all classified as ``nonhourly.''
To consider the possibility this biases our results, we looked at the
Panel Study of Income Dynamics (PSID). The PSID provides additional
information concerning salaried versus other nonhourly workers. In the
PSID, respondents are asked how they are paid on their main job and are
asked for more detail if their response is some way other than salaried
or hourly.\247\ The available responses include piecework, commission,
self-employed/farmer/profits, and by the job/day/mile. None of these
options are ones to which employers are likely to change their salaried
workers. The share of workers who are not paid on either an hourly or
salaried basis is relatively small, about 10 percent of workers in the
PSID. Accordingly, grouping nonhourly workers with salaried workers
does not negate the following comparisons and conclusions based on CPS
data.
---------------------------------------------------------------------------
\247\ This question is only asked of ``heads'' and ``wives'' in
the PSID (i.e., heads of households and their spouses). However, in
the 2013 PSID, ``heads'' and ``wives'' composed 88 percent of
workers.
---------------------------------------------------------------------------
Workers May Remain Salaried Even if Nonexempt
The Department disagrees with commenters that suggested that
employers will likely (or automatically) convert large numbers of newly
nonexempt employees to hourly pay status. In some instances such
conversation may occur, for example, if an employee regularly works
overtime and the employer is able to adjust his or her regular rate.
However, for the majority of affected employees, there will be no
incentive for employers to convert them to hourly pay because they do
not work overtime. Also, employers may have other incentives to
maintain workers' salary status; for example, they
[[Page 32507]]
may offer salaried positions to attract talent. Commenters highlighted
that employees value job characteristics associated with salaried pay--
such as earnings predictability--and so employers may pay nonexempt
employees on a salary basis to preserve employee morale. Using the CPS
MORG data pooled for FY2013-FY2015 and projected to FY2017, the
Department estimated that 18.6 percent of white collar workers earning
below $455 per week are nonhourly; based on findings from the PSID, the
Department believes most of these nonhourly workers are salaried.
Previous Salary Level Updates Did Not Indicate Workers Being Converted
to Hourly
The Department analyzed employer responses to the 2004 Final Rule
and to a series of revisions to California's salary level test for
exemption under state law in order to better estimate whether workers
who are reclassified as nonexempt are more likely to be paid on an
hourly basis. These analyses allow the identification of any potential
regulatory impact while controlling for time trends and a broad range
of other relevant factors (education, occupation, industry, geographic
location, etc.). The Department found no evidence that changes in the
salary level for exemption resulted in a statistically significant
increase in the percent of full-time white collar workers paid on an
hourly basis following either the 2004 Final Rule or the California
salary level updates. See section VI.D.iii.5 for discussion of the
applicability of these results to this Final Rule.
2004 Final Rule. In 2004, the salary level required to be eligible
for exemption increased from $250 per week (short salary level) to $455
(the standard salary level).\248\ To estimate the effect of this salary
level update on the share of full-time, white collar workers paid
hourly, the Department conducted a difference-in-differences (DD)
analysis of the 2004 part 541 salary level revisions. The Department
modeled two types of differences to include in the analysis:
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\248\ The 2004 Final Rule increased the salary level from the
previous long test level of $155 per week (executive and
administrative exemptions) or $170 per week (professional exemption)
to $455 per week. For purposes of this analysis, the Department
compared the increase from the short test salary level ($250 per
week) since the long test was no longer operative due to increases
in the minimum wage.
---------------------------------------------------------------------------
Difference #1 (pre- versus post-rulemaking): January-March 2004
versus January-March 2005,\249\
---------------------------------------------------------------------------
\249\ The 2004 Final Rule was published April 23, 2004 and went
into effect August 23, 2004.
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Difference #2 (workers exempt before, but not after rule compared
to workers exempt both before and after the rule): Workers earning
between $250 and $455 per week versus those earning at least $455 but
less than $600.\250\
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\250\ In order to isolate the potential effect on earnings due
to the 2004 salary changes, we excluded workers in states where the
state EAP salary level was higher than the FLSA short salary level
(i.e., Alaska, California, Connecticut, Maine and New York).
---------------------------------------------------------------------------
Using this DD analysis, the Department found no evidence that
changes in the salary level for exemption resulted in a statistically
significant increase in the percent of full-time white collar workers
paid on an hourly basis following the 2004 Final Rule.\251\ This can
also be demonstrated by looking directly at the share of workers paid
hourly; the Department found that following the 2004 Final Rule, the
percent of full-time white collar workers who were paid hourly
decreased from 74.6 percent to 73.6 percent in the affected earnings
range ($250-$455), while it increased from 60.9 percent to 63.6 percent
in the earnings range where there were no changes to EAP exemption
eligibility. In other words, between the first quarter of 2004 and the
first quarter of 2005, the share of full-time white-collar workers who
are paid hourly decreased marginally in the group of potentially
affected workers (those earning $250 to $455), whereas in the group
earning above the salary level (those earning more than $455 but less
than $600) it increased by 2.6 percentage points.
---------------------------------------------------------------------------
\251\ The shares provided in the text do not control for other
covariates. However, using a DD regression approach that includes a
full complement of controls (age, education, gender, race,
ethnicity, occupation, industry, state of residence, working
overtime, multiple job holding), the relevant marginal effect is -
0.033 (i.e., the amount the likelihood of being paid hourly changes
post rulemaking for workers earning between $250 and $455 per week
relative to the change for workers earning $455 or above) and the p-
value is 0.118, which is not statistically significant at
conventional thresholds for significance. The difference-in-
differences model used can be written as where Hi is equal to 1 if
worker i is paid by the hour and 0 otherwise, Ti is equal to 1 if
worker i earns at least $250 but less than $455 and 0 if she earns
between $455 and $600, Pi is equal to 1 for the post-change period
(Jan.-Mar. 2005) and 0 for the pre-change period (Jan.-Mar. 2004),
and Ci is the set of worker-specific controls. The model was
estimated using a probit regression.
---------------------------------------------------------------------------
California. The exempt salary level in California is set by statute
as equal to twice the state minimum wage for 40 hours worked per week.
The salary level has been updated four times in recent years when
California raised the state minimum wage: In 2007 (from $540 to $600),
2008 (from $600 to $640), 2014 (from $640 to $720), and 2016 (from $720
to $800). To estimate the effect of the salary level update on the
share of white collar workers paid hourly, the Department conducted
difference-in-differences-in-differences (DDD) analyses of the
revisions to the California exempt salary level for which CPS data were
available (2007-2008, and 2014).\252\
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\252\ California raised the state minimum wage in January of
both 2007 and 2008. These changes were announced jointly in
September 2006. Because employers knew that a second increase in the
exempt salary level would occur one year after the 2007 increase,
the Department expected that they planned their adjustments
accordingly rather than treat the two increases as isolated
independent events. Therefore the Department considered the combined
effects of the 2007 and 2008 changes.
---------------------------------------------------------------------------
The Department modeled three types of differences to include in the
analyses:
Difference #1 (pre- versus post-rulemaking):
2007-2008: January-March 2006 versus January-March 2008, and 2014:
January-March 2014 versus January-March 2015.\253\
---------------------------------------------------------------------------
\253\ The minimum wage update took place in July 2014.
---------------------------------------------------------------------------
Difference #2 (workers exempt before, but not after rule compared
to workers exempt both before and after the rule):
2007-2008: Workers earning between $540 and $640 versus those
earning at least $640 but less than $740, and
2014: Workers earning between $640 and $720 versus workers earning
at least $720 but less than $800.
Difference #3: California workers versus workers in other states
where the salary level was not increased.\254\
---------------------------------------------------------------------------
\254\ We excluded Alaska, Connecticut and New York because the
state EAP salary levels either: (1) Were above the FLSA standard
salary level; (2) differed in the time periods considered; or (3)
both (1) and (2).
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Using this DDD analysis, the Department found no evidence that
changes in the salary level for exemption resulted in a statistically
significant increase in the percent of full-time white collar workers
paid on an hourly basis.\255\ This can also be
[[Page 32508]]
demonstrated by looking directly at the share of workers paid hourly
(using differences one and three). After the 2007-2008 California
update, among Californians earning between the old and new salary
levels, the share of full-time white collar workers being paid hourly
decreased slightly from 73.4 percent to 73.1 percent. Among full-time
white collar workers earning comparable amounts in states where the
salary level did not change, the share of workers being paid hourly
increased from 66.2 percent to 67.5 percent. After the 2014 California
update, the values increased from 72.0 percent to 74.0 percent in
California, and increased from 68.2 percent to 69.4 percent in other
states.\256\ Neither of these results suggests that the salary updates
resulted in a significantly greater percent of affected workers being
converted to hourly pay in California as compared to the rest of the
United States.
---------------------------------------------------------------------------
\255\ The shares provided in the text do not control for other
covariates. However, using a DDD regression approach that includes a
full complement of controls (age, education, gender, race,
ethnicity, occupation, industry, state of residence, working
overtime, multiple job holding), the relevant marginal effect for
2007-2008 is 0.018 and the p-value is 0.612. The marginal effect of
the triple difference for 2014 is -0.057 and the p-value is 0.103.
Neither of these are statistically significant at conventional
thresholds for significance. The difference-in-difference-in-
differences model used can be written as
where Hi is equal to 1 if worker i is paid by the hour and 0
otherwise, Ti is equal to 1 if worker i earns between the old
threshold and the new threshold and 0 if she earns just above the
new threshold, Pi is equal to 1 for the post-change period and 0 for
the pre-change period, Si is equal to 1 if worker i is in California
and 0 if she is in other states where the salary level was not
increased, and Ci is the set of worker-specific controls. The model
was estimated using a probit regression. The Department also
performed alternative analyses to check whether these results hold,
including (1) a comparison of California and other states looking
only at workers with earnings below the revised salary level (i.e.,
eliminating Difference #2 from the DDD model), and (2) running
simplified models without individual controls. None of these checks
found a significant increase in the percentage of workers paid on an
hourly basis.
\256\ The increase in the proportion of workers paid on an
hourly basis in the relevant salary range in California is not
statistically different from the increase in the proportion for
workers in other states.
---------------------------------------------------------------------------
The Department's Modeling of Possible ``Ratcheting'' Indicates Any
Effect Would Be Negligible
In a study submitted by the PPWO, Edgeworth Economics estimated the
impact that automatic updating using the fixed percentile approach
would have on the salary level. They found that ``[i]f just one quarter
of the full-time non-hourly workers earning less than $49,400 per year
($950 per week) were reclassified as hourly workers, the pay
distribution among the remaining non-hourly workers would shift so that
the 40th percentile of the 2016 pay distribution would be $54,184
($1,042 per week), about 9.6 percent higher than it was in 2015.''
Their estimate was based on the key assumption that one quarter of all
full-time nonhourly employees would be converted to hourly pay each
year. Accordingly, based on the Department's reading of the Edgeworth
Economics' analysis, it appears they converted one quarter of all full-
time nonhourly employees earning below the salary level to hourly
status. This modeling is inappropriate because it fails to account for
whether the employees perform white collar work and are subject to the
EAP exemption, and ignores that, at most, employers will only have an
incentive to convert affected workers (a small share of all full-time
nonhourly employees).
Oxford Economics also considered how converting salaried workers to
hourly status could influence automatically updated salary levels. In
one analysis, they assumed that employers will convert the lowest 40
percent of full-time salaried workers to hourly status in 2016, and
that by Year 2 the 40th percentile of the new distribution of salaried
workers would be equivalent to the 64th percentile of the original
distribution. The Department believes this model is clearly
unrealistic. Like Edgeworth Economics, Oxford Economics erroneously
assumes that workers who are not affected by the new salary would
nonetheless be converted to hourly status.
In another analysis, Oxford Economics estimated employer response
to updating the threshold to $970 in 2016. According to their analysis,
approximately 695,000, or nearly one third, of the 2,189,000 affected
workers will be converted from ``salaried exempt'' to ``hourly
nonexempt.'' Oxford Economics concluded that about two-thirds of these
converted employees will have their hourly rates decreased to leave
their earnings unchanged, and one third will have their hours reduced
to 38 per week. However, neither analysis appears to account for the
possibility that employers may continue to pay some newly nonexempt
employees on a salary basis, and thus both predictions likely
overestimate the number of workers converted to hourly status.
The Department conducted a similar analysis, using what the
Department believes are more realistic assumptions, and found a
significantly smaller potential impact. The Department considered which
affected workers are most likely to be converted from salaried to
hourly pay as a result of this rulemaking. Type 4 workers, those whose
salaries are increased to the new standard salary level, remain exempt
and their method of pay will not change. Type 3 workers, who regularly
work overtime and become nonexempt, and Type 2 workers, those who
occasionally work overtime and become nonexempt, are the most likely to
have their pay status changed. Type 1 workers (who make up more than 60
percent of the affected workers) are assumed to not work overtime, and
employers thus have little incentive to convert them to hourly pay. For
this analysis, the Department assumed all Type 2 and Type 3 workers are
converted to hourly status to generate a realistic upper bound of the
magnitude of any possible ratcheting effect. The Department estimated
that the salary level in 2026, after three updates, the salary level as
set in the Final Rule (based on weekly earnings of full-time salaried
workers in the South) could be approximately 2.5 percent higher than
expected due to this effect. This figure is significantly smaller than
the estimates provided by the commenters. Furthermore, we believe our
estimate is an overestimate because it assumes employers convert all
Type 2 and Type 3 workers to hourly status, which, for the reasons
discussed above and in section IV.E.iii. of the preamble, the
Department believes is a highly unlikely outcome.
x. Projections
1. Methodology
The Department projected affected workers, costs, and transfers
forward for ten years. This involved several steps. First, past growth
in the earnings distribution was used to estimate future salary levels.
Second, workers' earnings, absent a change in the salary levels, were
predicted. Third, predicted salary levels and earnings were used to
estimate affected workers. Fourth, employment adjustments were
estimated and adjusted earnings were calculated. Lastly, costs and
transfers were calculated.
First, in years when the salary level is updated, the predicted
salary levels are estimated using the historic geometric growth rate
between FY2005 and FY2015 in (1) the 40th earnings percentile of full-
time salaried workers in the South for the standard salary level and
(2) the 90th earnings percentile of full-time salaried workers
nationally for the HCE compensation level, projected to the second
quarter of the respective years before the updated levels go into
effect. Second, the Department calculated workers' projected earnings
in future years by applying the annual projected wage growth rate in
the workers' industry-occupation to current earnings, as described in
section VI.B.ii. Third, we compared workers' counter-factual earnings
(i.e., absent the rulemaking) to the predicted salary levels. If the
counter-factual earnings are below the relevant salary level (i.e.,
standard or HCE) then the worker is considered affected. In other
words, in each year affected EAP workers were identified as those who
would be exempt in FY2017 absent the rule change but have projected
earnings in the future year that are less than the relevant salary
[[Page 32509]]
level. Sampling weights were also adjusted to reflect employment growth
as explained in section VI.B.ii.
Adjusted hours for workers affected in Year 1 were re-estimated in
Year 2 using a long-run elasticity of labor demand of -0.4.\257\ For
workers newly affected in Year 2 through Year 10, employers' wage and
hour adjustments due to the rulemaking are estimated in that year, as
described in section VI.D.iv., except the long-run elasticity of labor
demand of -0.4 is used. Employer adjustments are made in the first year
the worker is affected and then applied to all future years in which
the worker continues to be affected (unless the worker switches to a
Type 4 worker). Workers' earnings in predicted years are earnings post
employer adjustments, with overtime pay, and with ongoing wage growth
based on historical growth rates (as described above).
---------------------------------------------------------------------------
\257\ This elasticity estimate is based on the Department's
analysis of the following paper: Lichter, A., Peichl, A. & Siegloch,
A. (2014). The Own-Wage Elasticity of Labor Demand: A Meta-
Regression Analysis. IZA DP No. 7958.
---------------------------------------------------------------------------
Very few commenters discussed the Department's projections for Year
2 through Year 10 in the NPRM's analysis. Dan Goldbeck \258\ stated, in
an article cited by the Association of Energy Service Companies, that
in the NPRM, the Department reported only Year 2 and Year 10 projected
estimates, making it ``difficult to know the accuracy of this
calculation.'' See also International Bancshares Corporation. In the
Final Rule, the Department has included projected costs in each of the
nine projected years.
---------------------------------------------------------------------------
\258\ Goldbeck, D. (2015). ``White Collar'' Overtime Expansion.
Regulation Review.
---------------------------------------------------------------------------
2. Estimated Projections
The Department estimated that in Year 1, 4.2 million EAP workers
will be affected, with about 65,000 of these attributable to the
revised HCE compensation level. In Year 10, the number of affected EAP
workers was estimated to equal 5.3 million with 217,000 attributed to
the HCE exemption. The projected number of affected EAP workers
accounts for anticipated employment growth by increasing the number of
workers represented by the affected EAP workers (i.e., increasing
sampling weights).
The projected number of affected workers includes workers who were
not EAP exempt in the base year but would have become exempt in the
absence of this Final Rule in Years 2 through 10. For example, a worker
may earn less than $455 in FY2017 but between $455 and $913 in
subsequent years; such a worker would be counted as an affected worker.
In the absence of this Final Rule he or she would likely have become
exempt at some point during the 9 projected years; however, as a result
of the Final Rule, this worker remains nonexempt, and is thus affected
by the Final Rule. In the NPRM the Department considered these workers
separately from affected workers and did not estimate costs and
transfers associated with these workers.\259\
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\259\ These workers were not considered in the NPRM because
their work patterns are known when they are nonexempt (because they
earn less than $455), but those patterns might change if they become
exempt (e.g., they may work more hours). However, because a
significant number of additional workers are projected to remain
nonexempt through this process, the Department chose to include them
in the analysis for this Final Rule. To do so, we assume their
exempt work patterns will be similar to their nonexempt work
patterns.
---------------------------------------------------------------------------
The Department quantified three types of direct employer costs in
the ten-year projections: (1) Regulatory familiarization costs; (2)
adjustment costs; and (3) managerial costs. Regulatory familiarization
costs only occur in Year 1 and years when the salary levels are
automatically updated. Thus, in addition to Year 1, some regulatory
familiarization costs are expected to occur in Year 4 (FY2020), Year 7
(FY2023), and Year 10 (FY2026).\260\ Specifically, the Department added
5 minutes per establishment for regulatory familiarization time to
access and read the published notice in the Federal Register with the
updated standard salary level and HCE compensation level in years when
the salary level is updated. In each of these three years (FY2020,
FY2023, and FY2026) regulatory familiarization costs are approximately
$23 million (see section VI.D.iii. for details on the methodology for
estimating costs).
---------------------------------------------------------------------------
\260\ The first update will go into effect January 1, 2020.
However, for this economic analysis, the Department modeled the
first automatic update to occur at the beginning of FY2020. This is
because the analysis is conducted by fiscal year and modeling the
update as going into effect a quarter before allows simplification
of the analysis with only a negligible impact on estimates.
---------------------------------------------------------------------------
Although start-up firms must still become familiar with the FLSA
following Year 1, the difference between the time necessary for
familiarization with the current part 541 exemptions and those
exemptions as modified by the Final Rule is essentially zero.
Therefore, projected regulatory familiarization costs for new entrants
over the next nine years are zero (although these new entrants will
incur regulatory familiarization costs in years when the salary and
compensation levels are updated).
Adjustment costs and managerial costs are a function of the number
of affected EAP workers and thus will be higher with automatic
updating. Adjustment costs will occur in any year in which workers are
newly affected. After Year 1, these costs are estimated to be
relatively small since the majority of workers affected by this
rulemaking are affected in Year 1, and the costs occur almost
exclusively in years when the salary is automatically updated.
Management costs recur each year for all affected EAP workers whose
hours are adjusted. Therefore, managerial costs increase modestly over
time as the number of affected EAP workers increases. The Department
estimated that Year 1 managerial costs would be $214.0 million (section
VI.D.iii.); by Year 10 these costs would grow slightly to $255.1
million. In years without automatic updates managerial costs fall
slightly since earnings growth will cause some workers to no longer be
affected in those years. In all years between 94 and 98 percent of
costs are attributable to the revised standard salary level (Table 33).
The Department projected two types of transfers from employers to
employees associated with workers affected by the regulation: (1)
Transfers due to the minimum wage provision and (2) transfers due to
the overtime pay provision. Transfers to workers from employers due to
the minimum wage provision, estimated to be $34.3 million in Year 1,
are projected to decline to $17.8 million in Year 10 as increased
earnings over time move workers' regular rate of pay above the minimum
wage.\261\ Transfers due to overtime pay should grow slightly over time
because the number of affected workers will increase, although
transfers fall in years between automatic updates. Transfers to workers
from employers due to the overtime pay provision increase from $1,250.8
million in Year 1 to $1,589.4 million in Year 10. Workers affected by
the revised standard salary level account for between 80 and 92 percent
of overtime transfers in all years.
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\261\ State minimum wages above the federal level as of January
1, 2016 were incorporated and used for projected years. Increases in
minimum wages were not projected. If state or federal minimum wages
increase between January 1, 2016 and FY2026, then estimated
projected minimum wage transfers may be underestimated.
[[Page 32510]]
Table 33--Projected Costs and Transfers, Standard and HCE Salary Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
Affected Costs Transfers
EAP -------------------------------------------------------------------------------------------
Fiscal year (year #) workers Adjustment DWL \b\
(millions) Reg. Fam. \a\ Managerial Total Due to MW Due to OT Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
........... (Millions FY2017$)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year:
2017 (1)....................... 4.2 272.5 191.4 214.0 677.9 34.3 1,250.8 1,285.2 6.4
2018 (2)....................... 4.0 0.0 1.5 206.6 208.0 28.5 907.9 936.5 8.7
2019 (3)....................... 3.9 0.0 1.9 200.6 202.6 27.7 883.9 911.6 8.5
2020 (4)....................... 4.6 22.8 10.4 232.5 265.7 25.8 1,221.2 1,247.0 9.8
2021 (5)....................... 4.4 0.0 2.8 223.7 226.5 24.6 1,134.7 1,159.2 9.6
2022 (6)....................... 4.3 0.0 2.8 217.6 220.5 20.5 1,017.3 1,037.8 9.4
2023 (7)....................... 5.0 23.0 7.3 243.4 273.7 18.0 1,404.6 1,422.6 10.2
2024 (8)....................... 4.8 0.0 2.5 236.1 238.6 15.2 1,290.0 1,305.3 10.0
2025 (9)....................... 4.6 0.0 2.2 230.9 233.1 14.4 1,193.2 1,207.6 10.1
2026 (10)...................... 5.3 23.1 5.9 255.1 284.2 17.8 1,589.4 1,607.2 11.1
Average Annualized:
3% real rate................... ........... 37.6 25.4 225.0 288.0 23.2 1,178.5 1,201.6 9.3
7% real rate................... ........... 42.4 29.0 223.6 295.1 23.8 1,165.3 1,189.1 9.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Adjustment costs occur in all years when there are newly affected workers, including years when the salary level is not updated. Adjustment costs
may occur in years without updated salary levels because some workers' projected earnings are estimated using negative earnings growth.
\b\ DWL was estimated based on the aggregate impact of both the minimum wage and overtime pay provisions. Since the transfer associated with the minimum
wage is negligible compared to the transfer associated with overtime pay, the vast majority of this cost is attributed to the overtime pay provision.
Table 33 also summarizes average annualized costs and transfers
over the ten-year projection period, using 3 percent and 7 percent real
discount rates. The Department estimated that total direct employer
costs have an average annualized value of $295.1 million per year over
ten years when using a 7 percent real discount rate. Of this total,
average annualized regulatory familiarization costs were estimated to
be $42.4 million. Average annualized adjustment costs were estimated to
be $29.0 million. The remaining $223.6 million in average annualized
direct costs were accounted for by managerial costs. The average
annualized value of total transfers was estimated to equal $1,189.1
million. The largest component of this was the transfer from employers
to workers due to overtime pay, which was $1,165.3 million per year,
while average annualized transfers due to the minimum wage totaled
$23.8 million per year.
The cost to society of fewer hours of labor demanded, expressed as
DWL, was estimated to be $6.4 million in Year 1. DWL increases over
time and in Year 10 it is projected to equal $11.1 million. DWL
increases sharply between Year 1 and Year 2 because the Department
assumes the market has had time to fully adjust to the revised standard
salary and HCE annual compensation levels by Year 2. In Year 1
employers may not be able to fully adjust wages and hours in response
to the rulemaking, so the Department used a short run wage elasticity
of labor demand to reflect this constrained response; in Year 2
employers have sufficient time to fully adjust, and a long-run wage
elasticity is used. Therefore, the decrease in hours worked is larger
in Year 2 than Year 1, and the DWL is also larger. Finally, the
Department estimated that average annualized DWL was $9.2 million per
year.
A summary of the estimates used in calculating DWL for years 1, 2
and 10 is presented in Table 34. The size of the DWL depends on the
change in average hourly wages, the change in average hours, and the
number of affected EAP workers with changes in their hours worked.
While the change in average hourly wages generally tends to be fairly
similar over time, the number of affected EAP workers increases in
years with updated salary levels and falls in other years; together
these lead to a slight increase in annual DWL over time.
Table 34--Summary of Projected Deadweight Loss Component Values
----------------------------------------------------------------------------------------------------------------
Future years
Component Year 1 -------------------------------
Year 2 Year 10
----------------------------------------------------------------------------------------------------------------
Standard salary
-----------------------------------------------
Average hourly wages (holding hours constant)
Pre......................................................... $14.86 $14.94 $17.59
Post \a\.................................................... $15.55 $15.45 $18.20
Change...................................................... $0.69 $0.51 $0.61
Change in average overtime hours................................ -0.40 -0.76 -0.79
Affected EAP workers (1,000s)................................... 803 778 903
DWL
Per worker per week......................................... $0.14 $0.20 $0.24
Nominal annual (millions)................................... $5.8 $7.9 $11.3
Real annual (millions of FY2017$)........................... $5.8 $7.9 $9.2
-----------------------------------------------
HCE
-----------------------------------------------
Average hourly wages (holding hours constant)
Pre......................................................... $42.84 $42.51 $45.03
Post \a\.................................................... $44.85 $43.96 $46.56
Change...................................................... $2.01 $1.45 $1.53
[[Page 32511]]
Change in average overtime hours................................ -0.37 -0.69 -0.68
Affected EAP workers (1,000s)................................... 31 34 83
DWL
Per worker per week......................................... $0.38 $0.50 $0.52
Nominal annual (millions)................................... $0.61 $0.88 $2.25
Real annual (millions of FY2017$)........................... $0.61 $0.87 $1.85
----------------------------------------------------------------------------------------------------------------
Note: DWL analysis is limited to workers in Types 2 and 3 who experience hour adjustments.
\a\ Despite general growth in wages, the average wage may fall slightly from Year 1 to Year 2 because the
population has changed.
3. Comparison to Projections With Alternative Methods
This section presents estimated projected impacts without automatic
updating and using the CPI-U to automatically update salary levels.
Projections without automatic updating are shown so impacts of the
initial increase and subsequent increases can be disaggregated.
Projections using the CPI-U are included because this alternative was
proposed as a potential method in the NPRM.
For the CPI-U method, the Department used the predicted change in
annual CPI-U values for FY2017 through FY2026 from the Congressional
Budget Office.\262\ For example, inflation based on the CPI-U for
FY2017, FY2018, and FY2019 is predicted to be 2.2, 2.4, and 2.4
percent, respectively; therefore, the projected salary level for Year 4
(the year of the first salary level update) is $978 ($913 x 1.022 x
1.024 x 1.024). In other years, predicted inflation based on the CPI-U
was projected to be 2.4 percent.
---------------------------------------------------------------------------
\262\ Congressional Budget Office. (2016). The Budget and
Economic Outlook: 2016 to 2026. Pub. No. 51129. Table E-2.
---------------------------------------------------------------------------
Table 35 shows projected numbers of affected workers, costs, and
transfers with these alternative methods. With triennial automatic
updating as adopted in this Final Rule, the number of affected EAP
workers would increase from 4.2 million to 5.3 million over 10 years.
With triennial automatic updating using the CPI-U, the number of
affected EAP workers would increase from 4.2 million to 5.4 million
over 10 years. Conversely, in the absence of automatic updating, the
number of affected EAP workers is projected to decline from 4.2 to 3.0
million.
The three costs to employers previously considered are (1)
regulatory familiarization costs, (2) adjustment costs, and (3)
managerial costs. Regulatory familiarization costs do not vary
depending on whether the fixed percentile method or the CPI-U method is
used for automatic updating, and are only slightly lower without
automatic updating. Adjustment costs and managerial costs are a
function of the number of affected EAP workers and so will be higher
with automatic updating. Average annualized direct costs were projected
to be very similar with the fixed percentile method and the CPI-U
method: $295.1 million and $294.7 million, respectively. Average
annualized direct costs are lower without automatic updating because
fewer workers will be affected ($249.8 million).
Average annualized transfers and DWL follow a similar pattern:
estimates are very similar for the fixed percentile method and the CPI-
U method, but are lower without automatic updating. Average annualized
transfers are $1,189.1 million with the fixed earnings percentile,
$1,172.6 million with the CPI-U method, and $873.5 million without
automatic updating. Average annualized DWL is $9.2 million with the
fixed earnings percentile, $9.2 million with the CPI-U method, and $7.7
million without automatic updating.
[[Page 32512]]
[GRAPHIC] [TIFF OMITTED] TR23MY16.009
Appendix A: Methodology for Estimating Exemption Status
The number of workers exempt under the FLSA's part 541 regulations
is unknown. It is neither reported by employers to any central agency
nor asked in either an employee or establishment survey.\263\ The
[[Page 32513]]
Department estimated the number of exempt workers using the following
methodology. This methodology is based largely on the approach used
during the 2004 revisions.\264\ This appendix expands on the
methodology description in the Final Rule.
---------------------------------------------------------------------------
\263\ RAND recently released results from a survey conducted to
estimate EAP exempt workers. Rohwedder, S. and Wenger, J.B. (2015).
The Fair Labor Standards Act: Worker Misclassification and the Hours
and Earnings Effects of Expanded Coverage. RAND Labor and
Population.
\264\ 69 FR 22196-22209 (Apr. 23, 2004).
---------------------------------------------------------------------------
A.1 The Duties Tests Probability Codes
The CPS MORG data do not include information about job duties. To
determine whether a worker meets the duties test the Department employs
the methodology it used in the 2004 Final Rule. Each occupation is
assigned a probability representing the odds that a worker in that
occupation would pass the duties test. For the EAP duties test, the
five probability intervals are:
Category 0: Occupations not likely to include any workers
eligible for the EAP exemptions.
Category 1: Occupations with probabilities between 90 and
100 percent.
Category 2: Occupations with probabilities between 50 and
90 percent.
Category 3: Occupations with probabilities between 10 and
50 percent.
Category 4: Occupations with probabilities between 0 and
10 percent.\265\
---------------------------------------------------------------------------
\265\ Table A2 lists the probability codes by occupation used to
estimate exemption status.
---------------------------------------------------------------------------
The occupations identified in this classification system represent
an earlier occupational classification scheme (the 1990 Census Codes).
Therefore, an occupational crosswalk was used to map the previous
occupational codes to the 2002 Census occupational codes which are used
in the CPS MORG 2002 through 2010 data.266 267 When the new
occupational category was comprised of more than one previous
occupation, the Department assigned a probability category using the
weighted average of the previous occupations' probabilities, rounded to
the closest category code.
---------------------------------------------------------------------------
\266\ To match 1990 Census Codes to the corresponding 2000
Census Codes see: http://www.census.gov/people/io/methodology/. To
translate the 2000 Census Codes into the 2002 Census Codes each code
is multiplied by 10.
\267\ Beginning January 2011, the MORG data use the 2010 Census
Codes. The Department translates these codes into the equivalent
2002 Census Codes to create continuity. The crosswalk is available
at: http://www.census.gov/people/io/methodology/.
---------------------------------------------------------------------------
Next, the Department must determine which workers to classify as
exempt. For example, the probability codes indicate that out of every
ten public relation managers between five and nine are exempt; however,
the Department does not know which five to nine workers are exempt.
Exemption status could be randomly assigned but this would bias the
earnings of exempt workers downward, since higher paid workers are more
likely to perform the required duties. Therefore, the probability of
being classified as exempt should increase with earnings. First, the
Department assigned the upper bound of the probability range in each
exemption category to workers with top-coded weekly earnings. For all
other white collar salaried workers earning at least $455 per week in
each exemption category,\268\ the Department estimated the probability
of exemption for each worker in the data based on both occupation and
earnings using a gamma distribution.\269\ For the gamma distribution,
the shape parameter alpha was set to the squared quotient of the sample
mean divided by the sample standard deviation, and the scale parameter
beta was set to the sample variance divided by the sample mean. These
parameter calculations are based on the method described in the 2004
rulemaking, except for the use of the standard deviation instead of the
standard error.\270\ Table A1 shows that the expected number of exempt
workers is similar when using a gamma distribution method and assigning
the midpoint of each probability code range to all workers in that
probability code. After determining the probabilities of exemption for
each worker in the data (dependent on both occupation and earnings),
the Department randomly assigns exemption status to each worker,
conditional on the worker's probability of exemption.
---------------------------------------------------------------------------
\268\ Also included are all workers who are in occupational
categories associated with named occupations.
\269\ A gamma distribution is a general type of statistical
distribution that is based on two parameters, in this case alpha and
beta. The gamma distribution was chosen because during the 2004
revision it fit the data the best of the non-linear distributions
considered, which included normal, lognormal, and gamma. 69 FR
22204-08.
\270\ Since the sample standard deviation is much larger than
the standard error, using the sample standard deviation to calculate
the shape and location parameters resulted in probabilities that
vary more with earnings.
Table A1--Comparison of EAP-Exempt Worker Estimates \a\
------------------------------------------------------------------------
Gamma
Probability code category Midpoint distribution
probability model
------------------------------------------------------------------------
High probability of exemption (1). 23,134,055 23,165,165
Probably exempt (2)............... 4,808,003 4,792,536
Probably not exempt (3)........... 1,675,615 1,644,144
Low or no probability of exemption 277,473 287,310
(4)..............................
-------------------------------------
Total......................... 29,895,146 29,889,154
------------------------------------------------------------------------
\a\ Numbers shown are the expected value of the number of workers exempt
in each of the four probability code categories.
The 2004 Final Rule assigned probabilities for whether workers in
each occupation would pass the HCE abbreviated duties test if they
earned $100,000 or more in total annual compensation; these
probabilities are:
Category 0: Occupations not likely to include any workers
eligible for the HCE exemption.
Category 1: Occupations with a probability of 100 percent.
Category 2: Occupations with probabilities between 94 and
96 percent.
Category 3: Occupations with probabilities between 58.4
and 60 percent.
Category 4: Occupations with a probability of 15 percent.
Like under the standard test, there is a positive relationship
between earnings and exemption status; however, unlike the standard
test, the relationship for the HCE analysis can be represented well
with a linear earnings function. Once individual probabilities are
determined, workers are randomly assigned to exemption status.
A.2 Other Exemptions
There are many other exemptions to the minimum wage and overtime
pay provisions of the FLSA. Accordingly, in the 2004 Final Rule, the
Department excluded workers in agriculture and certain transportation
occupations from
[[Page 32514]]
the analysis. The Department now is, in addition, estimating those
workers who fall under one of the other exemptions in section 13(a) of
the FLSA, because such workers are exempt from both minimum wage and
overtime pay under the relevant section and would remain exempt
regardless of any changes to the EAP exemption. In fact, many of the
workers estimated below as falling within one of the section 13(a)
exemptions will already have been excluded from the analysis because
they are paid on an hourly basis or are in a blue collar occupation.
The methodology for identifying the workers who fall under the section
13(a) exemptions is explained here and is based generally on the
methodology the Department used in 1998 when it issued its last report
under section 4(d) of the FLSA.
A.2.1 Section 13(a)(1) Outside Sales Workers
Outside sales workers are a subset of the section 13(a)(1)
exemptions, but since they are not affected by the salary regulations
they are not discussed in detail in the preamble. Outside sales workers
are included in occupational category ``door-to-door sales workers,
news and street vendors, and related workers'' (Census code 4950). This
category is composed of workers who both would and would not qualify
for the outside sales worker exemption; for example, street vendors
would not qualify. Therefore, the percentage of these workers that
qualify for the exemption was estimated. The Department believes that,
under the 1990 Census Codes system, outside sales workers were more or
less uniquely identified with occupational category ``street & door-to-
door sales workers'' (277). Therefore, the Department exempts the share
of workers in category 4950 who would have been classified as code 277
(43 percent) under the old classification system.
A.2.2 Agricultural Workers
Similar to the 2004 analysis, the Department excluded agricultural
workers from the universe of affected employees. In the 2004 Final Rule
all workers in agricultural industries were excluded; however, here
only workers also in select occupations were excluded since not all
workers in agricultural industries qualify for the agricultural
overtime pay exemptions. This method better approximates the true
number of exempt agricultural workers and provides a more conservative
estimate of the number of affected workers. Industry categories
include: ``crop production'' (0170), ``animal production'' (0180), and
``support activities for agriculture and forestry'' (0290).
Occupational categories include all blue collar occupations (identified
with the probability codes), ``farm, ranch, and other agricultural
managers'' (0200), ``general and operations managers'' (0020), and
``first-line supervisors/managers of farming, fishing, and forestry
workers'' (6000).
A.2.3 Other Section 13(a) Exemptions
The following methodology relies mainly on CPS MORG data but also
incorporates alternative data sources when necessary.
Section 13(a)(3): Seasonal amusement and recreational establishment
Any employee of an amusement or recreational establishment may be
exempt from minimum wage and overtime pay if the establishment meets
either of the following tests: (a) It operates for seven months or less
during any calendar year, or (b) its revenue for the six lowest months
of the year is less than one-third of the other six months of such
year. Amusement and recreational establishments are defined as
``establishments frequented by the public for its amusement or
recreation,'' and ``typical examples of such are the concessionaires at
amusement parks and beaches.'' \271\ In the CPS MORG data the
Department identifies general amusement and recreation in the following
industry categories:
---------------------------------------------------------------------------
\271\ Sec. 779.385.
---------------------------------------------------------------------------
``independent artists, performing arts, spectator sports,
and related industries'' (8560),
``museums, art galleries, historical sites, and similar
institutions'' (8570),
``bowling centers'' (8580),
``other amusement, gambling, and recreation industries''
(8590), and
``recreational vehicle parks and camps, and rooming and
boarding houses'' (8670).\272\
---------------------------------------------------------------------------
\272\ The Department does not believe that all employees in this
industry category would qualify for this exemption. However, we had
no way to segregate in the data employees who would and would not
qualify for exemption.
---------------------------------------------------------------------------
The CPS MORG data does not provide information on employers'
operating information or revenue. Using Business Employment Dynamics
(BED) data, the Department estimated the share of leisure and
hospitality employees working for establishments that are closed for at
least one quarter a year.\273\ Although not technically the same as the
FLSA definition of ``seasonal,'' this is the best available
approximation of ``seasonal'' employees. The Department estimated that
2.8 percent of amusement and recreational workers will be exempt.
---------------------------------------------------------------------------
\273\ Seasonal employment was calculated by taking the
difference in employment between establishment openings (all
establishments that are either opening for the first time or
reopening) and establishment births (establishments that are opening
for the first time)--resulting in employment in only establishments
reopening. Similarly, seasonal employment was estimated by taking
the difference in employment between establishment closings and
establishment deaths. These two estimates were then averaged. The
analysis is limited to the leisure and hospitality industry. Since
the exemption is limited to workers in ``establishments frequented
by the public for its amusement or recreation'' the Department must
assume the rate of employment in seasonal establishments, relative
to all establishments, is equivalent across these amusement or
recreation establishments and all leisure and hospitality
establishments.
---------------------------------------------------------------------------
The 1998 section 4(d) report estimated the number of exempt workers
by applying an estimate determined in 1987 by a detailed report from
the Employment Standards Administration. The Department chose not to
use this estimate because it is outdated.
Section 13(a)(3) also exempts employees of seasonal religious or
non-profit educational centers, but many of these workers have already
been excluded from the analysis either as religious workers (not
covered by the FLSA) or as teachers (professional exemption) and so are
not estimated.
Section 13(a)(5): Fishermen
Any employee, such as a fisherman, employed in the catching,
harvesting, or farming of fish or other aquatic life forms, is exempt
from minimum wage and overtime pay. Fishermen are identified in
occupational categories ``fishers and related fishing workers'' (6100)
and ``ship and boat captains and operators'' (9310) and the industry
category ``fishing, hunting, and trapping'' (0280). Workers identified
in both these occupational and industry categories are considered
exempt.
Section 13(a)(8): Small, local newspapers
This exemption from minimum wage and overtime pay applies to any
employee employed by a newspaper with circulation of less than 4,000
and circulated mainly within the county where published. Newspaper
employees are identified in the following occupational categories:
``news analysts, reporters and correspondents'' (2810),
``editors'' (2830),
``technical writers'' (2840),
``writers and authors'' (2850), and
``miscellaneous media and communication workers'' (2860).
[[Page 32515]]
The exemption is limited to the industry category ``newspaper
publishers'' (6470). To limit the exemption to small, local papers, the
Department limits the exemption to employees in rural areas. Although
employment in a rural area is not synonymous with employment at a small
newspaper, this is the best approach currently available.
Alternatively, the Department could use data from Dun and Bradstreet
(D&B) as was done in the 1998 section 4(d) report. This data would
provide information on which establishments are in rural areas; from
this the Department could estimate the share of employment in rural
areas. This approach would be much more time intensive but would not
necessarily provide a better result.
Section 13(a)(10): Switchboard operators
An independently owned public telephone company that has not more
than 750 stations may claim the minimum wage and overtime pay exemption
for its switchboard operators. ``Switchboard operators, including
answering service'', are exempt under occupation code 5010 and industry
classifications ``wired telecommunications carriers'' (6680) and
``other telecommunications carriers'' (6690). Using the 2012 Economic
Census, the Department estimated that 1.6 percent of employees in the
telecommunication industry (NAICS 517) are employed by firms with fewer
than ten employees (the estimated level of employment necessary to
service seven hundred and fifty stations). According to the 1998
section 4(d) report, fewer than 10,000 workers were exempt in 1987 and
so at that time the Department did not develop a methodology for
estimating the number exempt.
Section 13(a)(12): Seamen on foreign vessels
Any employee employed as a seaman on a vessel other than an
American vessel is exempt from minimum wage and overtime pay. Seamen
are identified by occupational categories:
``sailors and marine oilers'' (9300),
``ship and boat captains and operators'' (9310), and
``ship engineers'' (9570).
The CPS MORG data do not identify whether the vessel is foreign or
domestic. The best approach the Department has devised is to assume
that the number of workers in the occupation ``deep sea foreign
transportation of freight'' (SIC 441) in 2000 is roughly equivalent to
the number of workers on foreign vessels.\274\ The 2001 Occupational
Employment Statistics estimates there were 13,290 workers in this
occupation and thus that number of seamen are assigned exempt status on
a random basis.
---------------------------------------------------------------------------
\274\ The SIC classification system has been replaced with
NAICS; thus, more recent data are not available.
---------------------------------------------------------------------------
Section 13(a)(15): Companions
Domestic service workers employed to provide ``companionship
services'' for an elderly person or a person with an illness, injury,
or disability are not required to be paid the minimum wage or overtime
pay. Companions are classified under occupational categories:
``nursing, psychiatric, and home health aides'' (3600) and
``personal and home care aides'' (4610).
And industry categories:
``home health care services'' (8170),
``individual and family services'' (8370), and
``private households'' (9290).
All the workers who fall within these occupational and industry
categories were previously excluded from the analysis because they are
in occupations where workers have no likelihood of qualifying for the
section 13(a)(1) exemption.
Section 13(a)(16): Criminal investigators
The criminal investigator must be employed by the federal
government and paid ``availability pay.'' \275\ Criminal investigators
are identified in occupational categories:
---------------------------------------------------------------------------
\275\ Availability pay is compensation for hours when the agent
must be available to perform work over and above the standard 40
hours per week. See http://www.opm.gov/oca/pay/HTML/AP.HTM.
---------------------------------------------------------------------------
``detectives and criminal investigators'' (3820),
``fish and game wardens'' (3830), and
``private detectives and investigators'' (3910).
This exemption was not mentioned in the 1998 section 4(d) report.
The Department exempts all workers in the occupations identified above
and employed by the federal government (PEIO1COW value equal to one).
Section 13(a)(17): Computer workers
Computer workers who meet the duties test are exempt under two
sections of the FLSA. Salaried computer workers who earn a weekly
salary of not less than $455 are exempt under section 13(a)(1) and
computer workers who are paid hourly are exempt under section 13(a)(17)
if they earn at least $27.63 an hour. Occupations that may be
considered exempt include: ``Computer and information systems
managers'' (110), ``computer scientists and systems analysts'' (1000),
``computer programmers'' (1010), ``computer software engineers''
(1020), ``computer support specialists'' (1040), ``database
administrators'' (1060), ``network and computer systems
administrators'' (1100), ``network systems and data communications
analysts'' (1110), ``computer operators'' (5800), and ``computer
control programmers and operators'' (7900).
To identify computer workers exempt under section 13(a)(17), the
Department restricts the population to workers who are paid on an
hourly basis and who earn at least $27.63 per hour. To determine which
of these workers pass the computer duties test, we use the
probabilities of exemption assigned to these occupations by the
Department and assume a linear relationship between earnings and
exemption status. Note that none of these workers are impacted by the
rulemaking because they are paid on an hourly basis.
A.2.4 Section 13(b) Exemptions
Section 13(b)(1): Motor carrier employees
This exemption eliminated overtime pay for ``any employee with
respect to whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to the provisions
of Section 31502 of Title 49.'' \276\ In essence, these are motor
carrier workers, identified by industry category ``truck
transportation'' (6170).
---------------------------------------------------------------------------
\276\ 49 U.S.C. 31502. The text of the law is available at:
http://www.gpo.gov/fdsys/pkg/USCODE-2011-title49/html/USCODE-2011-title49-subtitleVI-partB-chap315-sec31502.htm.
---------------------------------------------------------------------------
To be exempt, these workers must engage in ``safety affecting
activities.'' Examples of exempt occupations include: ``driver,
driver's helper, loader, or mechanic.'' \277\ The relevant occupational
categories are:
---------------------------------------------------------------------------
\277\ Fact Sheet #19: The Motor Carrier Exemption under the Fair
Labor Standards Act (FLSA).
---------------------------------------------------------------------------
``electronic equipment installers and repairers, motor
vehicles'' (7110),
``automotive service technicians and mechanics'' (7200),
``bus and truck mechanics and diesel engine specialists''
(7210),
``heavy vehicle and mobile equipment service technicians
and mechanics'' (7220), and
``driver/sales workers and truck drivers'' (9130).\278\
---------------------------------------------------------------------------
\278\ The 2004 methodology used 1990 Census codes 505, 507, and
804 which crosswalk to these occupations. However, occupations 605,
613, and 914 (included in the 1990 Census code 804) were excluded
because under the new classification system they were deemed
irrelevant.
---------------------------------------------------------------------------
Section 13(b)(2): Rail carrier employees
[[Page 32516]]
Section 13(b)(2) exempts ``any employee of an employer engaged in
the operation of a rail carrier subject to part A of subtitle IV of
Title 49.'' \279\ This includes industrial category ``rail
transportation'' (6080). The 1998 methodology did not include
occupational requirements but the 2004 methodology did, so this
restriction was included. Occupations are limited to:
---------------------------------------------------------------------------
\279\ 49 U.S.C. 10101-11908. Text of the law is available at:
http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleIV-partA.pdf.
---------------------------------------------------------------------------
``locomotive engineers and operators'' (9200),
``railroad brake, signal, and switch operators'' (9230),
``railroad conductors and yardmasters'' (9240), and
``subway, streetcar, and other rail transportation
workers'' (9260).
Section 13(b)(3): Air carrier employees
This section exempts employees subject to the ``provisions of title
II of the Railway Labor Act.'' \280\ In essence, this exempts air
carrier employees, identified by industry category ``air
transportation'' (6070). The 1998 methodology did not include
occupational requirements but the 2004 methodology did, so this
restriction was included. Occupations are limited to ``aircraft pilots
and flight engineers'' (9030) and ``aircraft mechanics and service
technicians'' (7140).
---------------------------------------------------------------------------
\280\ 45 U.S.C. 181 et seq. Available at: http://www.gpo.gov/fdsys/pkg/USCODE-2013-title45/html/USCODE-2013-title45-chap8-subchapII.htm.
---------------------------------------------------------------------------
Section 13(b)(6): Seamen
Occupational categories include ``sailors and marine oilers''
(9300), ``ship and boat captains and operators'' (9310), and ``ship
engineers'' (9570).\281\ The exemption is limited to the ``water
transportation'' industry (6090).
---------------------------------------------------------------------------
\281\ The 2004 methodology used 1990 Census codes 828, 829, and
833 which crosswalk to these occupations. However, occupation 952
(dredge, excavating, and loading machine operators) was excluded
because under the new classification system it was deemed
irrelevant.
---------------------------------------------------------------------------
Section 13(b)(10): Salesmen, partsmen, or mechanics
The Department limited this exemption to workers employed in a
``nonmanufacturing establishment primarily engaged in the business of
selling such vehicles or implements to ultimate purchasers.'' Industry
classifications include: ``automobile dealers'' (4670) and ``other
motor vehicle dealers'' (4680). In the 2004 Final Rule, the industry
was limited to 1990 Census code 612 which became Census code
``automobile dealers'' (4670). Category 4680 (``other motor vehicle
dealers'') is also included here in keeping with the 1998 section 4(d)
report methodology.
The 1998 methodology did not include an occupational restriction;
however, the 2004 methodology limited the exemption to automobiles,
trucks, or farm implement sales workers and mechanics.
Automobiles, trucks, or farm implement sales workers include:
``parts salespersons'' (4750), and
``retail salespersons'' (4760).\282\
---------------------------------------------------------------------------
\282\ The 2004 methodology used codes 263 and 269 which
crosswalk to these codes plus a few others which have been deemed
irrelevant and excluded (4700, 4740, and 4850).
---------------------------------------------------------------------------
Mechanics include:
``electronic equipment installers and repairers, motor
vehicles'' (7110),
``automotive body and related repairers'' (7150),
``automotive glass installers and repairers'' (7160),
``automotive service technicians and mechanics'' (7200),
``bus and truck mechanics and diesel engine specialists''
(7210),
``heavy vehicle and mobile equipment service technicians
and mechanics'' (7220),
``small engine mechanics'' (7240), and
``miscellaneous vehicle and mobile equipment mechanics,
installers, and repairers'' (7260).\283\
---------------------------------------------------------------------------
\283\ The 2004 methodology used codes 505, 506, 507, and 514
which generally crosswalk to these codes. A few additional codes
were added which were deemed relevant (7240 and 7260).
Table A2--Probability Codes by Occupation
------------------------------------------------------------------------
Probability
2002 Census code Occupation code
------------------------------------------------------------------------
10............................... Chief executives........ 1
20............................... General and operations 1
managers.
40............................... Advertising and 1
promotions managers.
50............................... Marketing and sales 1
managers.
60............................... Public relations 2
managers.
100.............................. Administrative services 1
managers.
110.............................. Computer and information 1
systems managers.
120.............................. Financial managers...... 1
130.............................. Human resources managers 1
140.............................. Industrial production 1
managers.
150.............................. Purchasing managers..... 1
160.............................. Transportation, storage, 1
and distribution
managers.
200.............................. Farm, ranch, and other 3
agricultural managers.
210.............................. Farmers and ranchers.... 0
220.............................. Construction managers... 1
230.............................. Education administrators 1
300.............................. Engineering managers.... 1
310.............................. Food service managers... 3
320.............................. Funeral directors....... 2
330.............................. Gaming managers......... 2
340.............................. Lodging managers........ 3
350.............................. Medical and health 1
services managers.
360.............................. Natural sciences 1
managers.
400.............................. Postmasters and mail 0
superintendents.
410.............................. Property, real estate, 3
and community
association managers.
420.............................. Social and community 1
service managers.
430.............................. Managers, all other..... 1
500.............................. Agents and business 2
managers of artists,
performers, and
athletes.
[[Page 32517]]
510.............................. Purchasing agents and 2
buyers, farm products.
520.............................. Wholesale and retail 2
buyers, except farm
products.
530.............................. Purchasing agents, 2
except wholesale,
retail, and farm
products.
540.............................. Claims adjusters, 2
appraisers, examiners,
and investigators.
560.............................. Compliance officers, 3
except agriculture,
construction, health
and safety, and
transportation.
600.............................. Cost estimators......... 1
620.............................. Human resources, 2
training, and labor
relations specialists.
700.............................. Logisticians............ 1
710.............................. Management analysts..... 2
720.............................. Meeting and convention 2
planners.
730.............................. Other business 2
operations specialists.
800.............................. Accountants and auditors 1
810.............................. Appraisers and assessors 3
of real estate.
820.............................. Budget analysts......... 2
830.............................. Credit analysts......... 2
840.............................. Financial analysts...... 2
850.............................. Personal financial 2
advisors.
860.............................. Insurance underwriters.. 1
900.............................. Financial examiners..... 3
910.............................. Loan counselors and 2
officers.
930.............................. Tax examiners, 1
collectors, and revenue
agents.
940.............................. Tax preparers........... 2
950.............................. Financial specialists, 2
all other.
1000............................. Computer scientists and 1
systems analysts.
1010............................. Computer programmers.... 2
1020............................. Computer software 1
engineers.
1040............................. Computer support 1
specialists.
1060............................. Database administrators. 1
1100............................. Network and computer 1
systems administrators.
1110............................. Network systems and data 1
communications analysts.
1200............................. Actuaries............... 1
1210............................. Mathematicians.......... 1
1220............................. Operations research 1
analysts.
1230............................. Statisticians........... 1
1240............................. Miscellaneous 1
mathematical science
occupations.
1300............................. Architects, except naval 1
1310............................. Surveyors, 3
cartographers, and
photogrammetrists.
1320............................. Aerospace engineers..... 1
1330............................. Agricultural engineers.. 1
1340............................. Biomedical engineers.... 1
1350............................. Chemical engineers...... 1
1360............................. Civil engineers......... 1
1400............................. Computer hardware 1
engineers.
1410............................. Electrical and 1
electronic engineers.
1420............................. Environmental engineers. 1
1430............................. Industrial engineers, 1
including health and
safety.
1440............................. Marine engineers and 1
naval architects.
1450............................. Materials engineers..... 1
1460............................. Mechanical engineers.... 1
1500............................. Mining and geological 1
engineers, including
mining safety engineers.
1510............................. Nuclear engineers....... 1
1520............................. Petroleum engineers..... 1
1530............................. Engineers, all other.... 1
1540............................. Drafters................ 4
1550............................. Engineering technicians, 4
except drafters.
1560............................. Surveying and mapping 4
technicians.
1600............................. Agricultural and food 1
scientists.
1610............................. Biological scientists... 1
1640............................. Conservation scientists 1
and foresters.
1650............................. Medical scientists...... 1
1700............................. Astronomers and 1
physicists.
1710............................. Atmospheric and space 1
scientists.
1720............................. Chemists and materials 1
scientists.
1740............................. Environmental scientists 1
and geoscientists.
1760............................. Physical scientists, all 3
other.
1800............................. Economists.............. 2
1810............................. Market and survey 2
researchers.
1820............................. Psychologists........... 1
1830............................. Sociologists............ 2
1840............................. Urban and regional 3
planners.
[[Page 32518]]
1860............................. Miscellaneous social 2
scientists and related
workers.
1900............................. Agricultural and food 4
science technicians.
1910............................. Biological technicians.. 4
1920............................. Chemical technicians.... 4
1930............................. Geological and petroleum 4
technicians.
1940............................. Nuclear technicians..... 4
1960............................. Other life, physical, 4
and social science
technicians.
2000............................. Counselors.............. 2
2010............................. Social workers.......... 3
2020............................. Miscellaneous community 3
and social service
specialists.
2040............................. Clergy.................. 0
2050............................. Directors, religious 0
activities and
education.
2060............................. Religious workers, all 0
other.
2100............................. Lawyers................. 1
2110............................. Judges, magistrates, and 1
other judicial workers.
2140............................. Paralegals and legal 4
assistants.
2150............................. Miscellaneous legal 3
support workers.
2200............................. Postsecondary teachers.. 1
2300............................. Preschool and 2
kindergarten teachers.
2310............................. Elementary and middle 1
school teachers.
2320............................. Secondary school 1
teachers.
2330............................. Special education 1
teachers.
2340............................. Other teachers and 1
instructors.
2400............................. Archivists, curators, 1
and museum technicians.
2430............................. Librarians.............. 1
2440............................. Library Technicians..... 4
2540............................. Teacher assistants...... 4
2550............................. Other education, 1
training, and library
workers.
2600............................. Artists and related 2
workers.
2630............................. Designers............... 1
2700............................. Actors.................. 1
2710............................. Producers and directors. 1
2720............................. Athletes, coaches, 2
umpires, and related
workers.
2740............................. Dancers and 1
choreographers.
2750............................. Musicians, singers, and 1
related workers.
2760............................. Entertainers and 1
performers, sports and
related workers, all
other.
2800............................. Announcers.............. 2
2810............................. News analysts, reporters 3
and correspondents.
2820............................. Public relations 3
specialists.
2830............................. Editors................. 3
2840............................. Technical writers....... 3
2850............................. Writers and authors..... 2
2860............................. Miscellaneous media and 2
communication workers.
2900............................. Broadcast and sound 4
engineering technicians
and radio operators.
2910............................. Photographers........... 1
2920............................. Television, video, and 2
motion picture camera
operators and editors.
2960............................. Media and communication 4
equipment workers, all
other.
3000............................. Chiropractors........... 1
3010............................. Dentists................ 1
3030............................. Dietitians and 3
nutritionists.
3040............................. Optometrists............ 1
3050............................. Pharmacists............. 1
3060............................. Physicians and surgeons. 1
3110............................. Physician assistants.... 2
3120............................. Podiatrists............. 1
3130............................. Registered nurses....... 1
3140............................. Audiologists............ 2
3150............................. Occupational therapists. 3
3160............................. Physical therapists..... 2
3200............................. Radiation therapists.... 3
3210............................. Recreational therapists. 2
3220............................. Respiratory therapists.. 3
3230............................. Speech-language 2
pathologists.
3240............................. Therapists, all other... 2
3250............................. Veterinarians........... 1
3260............................. Health diagnosing and 1
treating practitioners,
all other.
3300............................. Clinical laboratory 3
technologists and
technicians.
3310............................. Dental hygienists....... 3
3320............................. Diagnostic related 3
technologists and
technicians.
3400............................. Emergency medical 3
technicians and
paramedics.
[[Page 32519]]
3410............................. Health diagnosing and 4
treating practitioner
support technicians.
3500............................. Licensed practical and 4
licensed vocational
nurses.
3510............................. Medical records and 4
health information
technicians.
3520............................. Opticians, dispensing... 0
3530............................. Miscellaneous health 2
technologists and
technicians.
3540............................. Other healthcare 3
practitioners and
technical occupations.
3600............................. Nursing, psychiatric, 0
and home health aides.
3610............................. Occupational therapist 0
assistants and aides.
3620............................. Physical therapist 0
assistants and aides.
3630............................. Massage therapists...... 0
3640............................. Dental assistants....... 0
3650............................. Medical assistants and 4
other healthcare
support occupations.
3700............................. First-line supervisors/ 2
managers of
correctional officers.
3710............................. First-line supervisors/ 3
managers of police and
detectives.
3720............................. First-line supervisors/ 3
managers of fire
fighting and prevention
workers.
3730............................. Supervisors, protective 3
service workers, all
other.
3740............................. Fire fighters........... 0
3750............................. Fire inspectors......... 0
3800............................. Bailiffs, correctional 0
officers, and jailers.
3820............................. Detectives and criminal 0
investigators.
3830............................. Fish and game wardens... 0
3840............................. Parking enforcement 0
workers.
3850............................. Police and sheriff's 0
patrol officers.
3860............................. Transit and railroad 0
police.
3900............................. Animal control workers.. 0
3910............................. Private detectives and 4
investigators.
3920............................. Security guards and 0
gaming surveillance
officers.
3940............................. Crossing guards......... 0
3950............................. Lifeguards and other 0
protective service
workers.
4000............................. Chefs and head cooks.... 0
4010............................. First-line supervisors/ 3
managers of food
preparation and serving
workers.
4020............................. Cooks................... 0
4030............................. Food preparation workers 0
4040............................. Bartenders.............. 0
4050............................. Combined food 0
preparation and serving
workers, including fast
food.
4060............................. Counter attendants, 0
cafeteria, food
concession, and coffee
shop.
4110............................. Waiters and waitresses.. 0
4120............................. Food servers, 0
nonrestaurant.
4130............................. Dining room and 0
cafeteria attendants
and bartender helpers.
4140............................. Dishwashers............. 0
4150............................. Hosts and hostesses, 4
restaurant, lounge, and
coffee shop.
4160............................. Food preparation and 0
serving related
workers, all other.
4200............................. First-line supervisors/ 4
managers of
housekeeping and
janitorial workers.
4210............................. First-line supervisors/ 3
managers of
landscaping, lawn
service, and
groundskeeping workers.
4220............................. Janitors and building 0
cleaners.
4230............................. Maids and housekeeping 0
cleaners.
4240............................. Pest control workers.... 0
4250............................. Grounds maintenance 0
workers.
4300............................. First-line supervisors/ 1
managers of gaming
workers.
4320............................. First-line supervisors/ 4
managers of personal
service workers.
4340............................. Animal trainers......... 4
4350............................. Nonfarm animal 0
caretakers.
4400............................. Gaming services workers. 0
4410............................. Motion picture 0
projectionists.
4420............................. Ushers, lobby 0
attendants, and ticket
takers.
4430............................. Miscellaneous 0
entertainment
attendants and related
workers.
4460............................. Funeral service workers. 0
4500............................. Barbers................. 0
4510............................. Hairdressers, 0
hairstylists, and
cosmetologists.
4520............................. Miscellaneous personal 0
appearance workers.
4530............................. Baggage porters, 0
bellhops, and
concierges.
4540............................. Tour and travel guides.. 0
4550............................. Transportation 0
attendants.
4600............................. Child care workers...... 0
4610............................. Personal and home care 0
aides.
4620............................. Recreation and fitness 2
workers.
4640............................. Residential advisors.... 0
4650............................. Personal care and 0
service workers, all
other.
4700............................. First-line supervisors/ 2
managers of retail
sales workers.
4710............................. First-line supervisors/ 2
managers of non-retail
sales workers.
[[Page 32520]]
4720............................. Cashiers................ 4
4740............................. Counter and rental 4
clerks.
4750............................. Parts salespersons...... 4
4760............................. Retail salespersons..... 4
4800............................. Advertising sales agents 2
4810............................. Insurance sales agents.. 2
4820............................. Securities, commodities, 2
and financial services
sales agents.
4830............................. Travel agents........... 4
4840............................. Sales representatives, 3
services, all other.
4850............................. Sales representatives, 3
wholesale and
manufacturing.
4900............................. Models, demonstrators, 4
and product promoters.
4920............................. Real estate brokers and 3
sales agents.
4930............................. Sales engineers......... 3
4940............................. Telemarketers........... 4
4950............................. Door-to-door sales 4
workers, news and
street vendors, and
related workers.
4960............................. Sales and related 3
workers, all other.
5000............................. First-line supervisors/ 1
managers of office and
administrative support
workers.
5010............................. Switchboard operators, 4
including answering
service.
5020............................. Telephone operators..... 4
5030............................. Communications equipment 4
operators, all other.
5100............................. Bill and account 4
collectors.
5110............................. Billing and posting 4
clerks and machine
operators.
5120............................. Bookkeeping, accounting, 4
and auditing clerks.
5130............................. Gaming cage workers..... 4
5140............................. Payroll and timekeeping 4
clerks.
5150............................. Procurement clerks...... 4
5160............................. Tellers................. 4
5200............................. Brokerage clerks........ 4
5210............................. Correspondence clerks... 4
5220............................. Court, municipal, and 4
license clerks.
5230............................. Credit authorizers, 3
checkers, and clerks.
5240............................. Customer service 3
representatives.
5250............................. Eligibility 3
interviewers,
government programs.
5260............................. File Clerks............. 4
5300............................. Hotel, motel, and resort 4
desk clerks.
5310............................. Interviewers, except 4
eligibility and loan.
5320............................. Library assistants, 4
clerical.
5330............................. Loan interviewers and 3
clerks.
5340............................. New accounts clerks..... 4
5350............................. Order clerks............ 4
5360............................. Human resources 4
assistants, except
payroll and timekeeping.
5400............................. Receptionists and 4
information clerks.
5410............................. Reservation and 4
transportation ticket
agents and travel
clerks.
5420............................. Information and record 4
clerks, all other.
5500............................. Cargo and freight agents 4
5510............................. Couriers and messengers. 4
5520............................. Dispatchers............. 4
5530............................. Meter readers, utilities 4
5540............................. Postal service clerks... 4
5550............................. Postal service mail 4
carriers.
5560............................. Postal service mail 4
sorters, processors,
and processing machine
operators.
5600............................. Production, planning, 4
and expediting clerks.
5610............................. Shipping, receiving, and 4
traffic clerks.
5620............................. Stock clerks and order 0
fillers.
5630............................. Weighers, measurers, 4
checkers, and samplers,
recordkeeping.
5700............................. Secretaries and 4
administrative
assistants.
5800............................. Computer operators...... 4
5810............................. Data entry keyers....... 4
5820............................. Word processors and 4
typists.
5830............................. Desktop publishers...... 4
5840............................. Insurance claims and 3
policy processing
clerks.
5850............................. Mail clerks and mail 4
machine operators,
except postal service.
5860............................. Office clerks, general.. 4
5900............................. Office machine 4
operators, except
computer.
5910............................. Proofreaders and copy 4
markers.
5920............................. Statistical assistants.. 4
5930............................. Office and 4
administrative support
workers, all other.
6000............................. First-line supervisors/ 4
managers of farming,
fishing, and forestry
workers.
6010............................. Agricultural inspectors. 3
6020............................. Animal breeders......... 3
[[Page 32521]]
6040............................. Graders and sorters, 0
agricultural products.
6050............................. Miscellaneous 0
agricultural workers.
6100............................. Fishers and related 0
fishing workers.
6110............................. Hunters and trappers.... 0
6120............................. Forest and conservation 0
workers.
6130............................. Logging workers......... 0
6200............................. First-line supervisors/ 4
managers of
construction trades and
extraction workers.
6210............................. Boilermakers............ 0
6220............................. Brickmasons, 0
blockmasons, and
stonemasons.
6230............................. Carpenters.............. 0
6240............................. Carpet, floor, and tile 0
installers and
finishers.
6250............................. Cement masons, concrete 0
finishers, and terrazzo
workers.
6260............................. Construction laborers... 0
6300............................. Paving, surfacing, and 0
tamping equipment
operators.
6310............................. Pile-driver operators... 0
6320............................. Operating engineers and 0
other construction
equipment operators.
6330............................. Drywall installers, 0
ceiling tile
installers, and tapers.
6350............................. Electricians............ 0
6360............................. Glaziers................ 0
6400............................. Insulation workers...... 0
6420............................. Painters, construction 0
and maintenance.
6430............................. Paperhangers............ 0
6440............................. Pipelayers, plumbers, 0
pipefitters, and
steamfitters.
6460............................. Plasterers and stucco 0
masons.
6500............................. Reinforcing iron and 0
rebar workers.
6510............................. Roofers................. 0
6520............................. Sheet metal workers..... 0
6530............................. Structural iron and 0
steel workers.
6600............................. Helpers, construction 0
trades.
6660............................. Construction and 3
building inspectors.
6700............................. Elevator installers and 0
repairers.
6710............................. Fence erectors.......... 0
6720............................. Hazardous materials 0
removal workers.
6730............................. Highway maintenance 0
workers.
6740............................. Rail-track laying and 0
maintenance equipment
operators.
6750............................. Septic tank servicers 0
and sewer pipe cleaners.
6760............................. Miscellaneous 0
construction and
related workers.
6800............................. Derrick, rotary drill, 0
and service unit
operators, oil, gas,
and mining.
6820............................. Earth drillers, except 0
oil and gas.
6830............................. Explosives workers, 0
ordnance handling
experts, and blasters.
6840............................. Mining machine operators 0
6910............................. Roof bolters, mining.... 0
6920............................. Roustabouts, oil and gas 0
6930............................. Helpers--extraction 0
workers.
6940............................. Other extraction workers 0
7000............................. First-line supervisors/ 3
managers of mechanics,
installers, and
repairers.
7010............................. Computer, automated 0
teller, and office
machine repairers.
7020............................. Radio and 0
telecommunications
equipment installers
and repairers.
7030............................. Avionics technicians.... 0
7040............................. Electric motor, power 0
tool, and related
repairers.
7050............................. Electrical and 0
electronics installers
and repairers,
transportation
equipment.
7100............................. Electrical and 0
electronics repairers,
industrial and utility.
7110............................. Electronic equipment 0
installers and
repairers, motor
vehicles.
7120............................. Electronic home 0
entertainment equipment
installers and
repairers.
7130............................. Security and fire alarm 0
systems installers.
7140............................. Aircraft mechanics and 0
service technicians.
7150............................. Automotive body and 0
related repairers.
7160............................. Automotive glass 0
installers and
repairers.
7200............................. Automotive service 0
technicians and
mechanics.
7210............................. Bus and truck mechanics 0
and diesel engine
specialists.
7220............................. Heavy vehicle and mobile 0
equipment service
technicians and
mechanics.
7240............................. Small engine mechanics.. 0
7260............................. Miscellaneous vehicle 0
and mobile equipment
mechanics, installers,
and repairers.
7300............................. Control and valve 0
installers and
repairers.
7310............................. Heating, air 0
conditioning, and
refrigeration mechanics
and installers.
7320............................. Home appliance repairers 0
7330............................. Industrial and 0
refractory machinery
mechanics.
7340............................. Maintenance and repair 0
workers, general.
7350............................. Maintenance workers, 0
machinery.
7360............................. Millwrights............. 0
[[Page 32522]]
7410............................. Electrical power-line 0
installers and
repairers.
7420............................. Telecommunications line 0
installers and
repairers.
7430............................. Precision instrument and 0
equipment repairers.
7510............................. Coin, vending, and 0
amusement machine
servicers and repairers.
7520............................. Commercial divers....... 4
7540............................. Locksmiths and safe 0
repairers.
7550............................. Manufactured building 0
and mobile home
installers.
7560............................. Riggers................. 0
7600............................. Signal and track switch 0
repairers.
7610............................. Helpers--installation, 0
maintenance, and repair
workers.
7620............................. Other installation, 0
maintenance, and repair
workers.
7700............................. First-line supervisors/ 3
managers of production
and operating workers.
7710............................. Aircraft structure, 0
surfaces, rigging, and
systems assemblers.
7720............................. Electrical, electronics, 0
and electromechanical
assemblers.
7730............................. Engine and other machine 0
assemblers.
7740............................. Structural metal 0
fabricators and fitters.
7750............................. Miscellaneous assemblers 0
and fabricators.
7800............................. Bakers.................. 0
7810............................. Butchers and other meat, 0
poultry, and fish
processing workers.
7830............................. Food and tobacco 0
roasting, baking, and
drying machine
operators and tenders.
7840............................. Food batchmakers........ 0
7850............................. Food cooking machine 0
operators and tenders.
7900............................. Computer control 4
programmers and
operators.
7920............................. Extruding and drawing 0
machine setters,
operators, and tenders,
metal and plastic.
7930............................. Forging machine setters, 0
operators, and tenders,
metal and plastic.
7940............................. Rolling machine setters, 0
operators, and tenders,
metal and plastic.
7950............................. Cutting, punching, and 0
press machine setters,
operators, and tenders,
metal and plastic.
7960............................. Drilling and boring 0
machine tool setters,
operators, and tenders,
metal and plastic.
8000............................. Grinding, lapping, 0
polishing, and buffing
machine tool setters,
operators, and tenders,
metal and plastic.
8010............................. Lathe and turning 0
machine tool setters,
operators, and tenders,
metal and plastic.
8020............................. Milling and planing 0
machine setters,
operators, and tenders,
metal and plastic.
8030............................. Machinists.............. 0
8040............................. Metal furnace and kiln 0
operators and tenders.
8060............................. Model makers and 0
patternmakers, metal
and plastic.
8100............................. Molders and molding 0
machine setters,
operators, and tenders,
metal and plastic.
8120............................. Multiple machine tool 0
setters, operators, and
tenders, metal and
plastic.
8130............................. Tool and die makers..... 0
8140............................. Welding, soldering, and 0
brazing workers.
8150............................. Heat treating equipment 0
setters, operators, and
tenders, metal and
plastic.
8160............................. Lay-out workers, metal 0
and plastic.
8200............................. Plating and coating 0
machine setters,
operators, and tenders,
metal and plastic.
8210............................. Tool grinders, filers, 0
and sharpeners.
8220............................. Metalworkers and plastic 0
workers, all other.
8230............................. Bookbinders and bindery 0
workers.
8240............................. Job printers............ 0
8250............................. Prepress technicians and 0
workers.
8260............................. Printing machine 0
operators.
8300............................. Laundry and dry-cleaning 0
workers.
8310............................. Pressers, textile, 0
garment, and related
materials.
8320............................. Sewing machine operators 0
8330............................. Shoe and leather workers 0
and repairers.
8340............................. Shoe machine operators 0
and tenders.
8350............................. Tailors, dressmakers, 0
and sewers.
8360............................. Textile bleaching and 0
dyeing machine
operators and tenders.
8400............................. Textile cutting machine 0
setters, operators, and
tenders.
8410............................. Textile knitting and 0
weaving machine
setters, operators, and
tenders.
8420............................. Textile winding, 0
twisting, and drawing
out machine setters,
operators, and tenders.
8430............................. Extruding and forming 0
machine setters,
operators, and tenders,
synthetic and glass
fibers.
8440............................. Fabric and apparel 0
patternmakers.
8450............................. Upholsterers............ 0
8460............................. Textile, apparel, and 0
furnishings workers,
all other.
8500............................. Cabinetmakers and bench 0
carpenters.
8510............................. Furniture finishers..... 0
8520............................. Model makers and 0
patternmakers, wood.
8530............................. Sawing machine setters, 0
operators, and tenders,
wood.
8540............................. Woodworking machine 0
setters, operators, and
tenders, except sawing.
8550............................. Woodworkers, all other.. 0
8600............................. Power plant operators, 0
distributors, and
dispatchers.
8610............................. Stationary engineers and 0
boiler operators.
8620............................. Water and liquid waste 0
treatment plant and
system operators.
[[Page 32523]]
8630............................. Miscellaneous plant and 0
system operators.
8640............................. Chemical processing 0
machine setters,
operators, and tenders.
8650............................. Crushing, grinding, 0
polishing, mixing, and
blending workers.
8710............................. Cutting workers......... 0
8720............................. Extruding, forming, 0
pressing, and
compacting machine
setters, operators, and
tenders.
8730............................. Furnace, kiln, oven, 0
drier, and kettle
operators and tenders.
8740............................. Inspectors, testers, 0
sorters, samplers, and
weighers.
8750............................. Jewelers and precious 0
stone and metal workers.
8760............................. Medical, dental, and 0
ophthalmic laboratory
technicians.
8800............................. Packaging and filling 0
machine operators and
tenders.
8810............................. Painting workers........ 0
8830............................. Photographic process 0
workers and processing
machine operators.
8840............................. Semiconductor processors 0
8850............................. Cementing and gluing 0
machine operators and
tenders.
8860............................. Cleaning, washing, and 0
metal pickling
equipment operators and
tenders.
8900............................. Cooling and freezing 0
equipment operators and
tenders.
8910............................. Etchers and engravers... 0
8920............................. Molders, shapers, and 0
casters, except metal
and plastic.
8930............................. Paper goods machine 0
setters, operators, and
tenders.
8940............................. Tire builders........... 0
8950............................. Helpers--production 0
workers.
8960............................. Production workers, all 0
other.
9000............................. Supervisors, 3
transportation and
material moving workers.
9030............................. Aircraft pilots and 4
flight engineers.
9040............................. Air traffic controllers 3
and airfield operations
specialists.
9110............................. Ambulance drivers and 0
attendants, except
emergency medical
technicians.
9120............................. Bus drivers............. 0
9130............................. Driver/sales workers and 0
truck drivers.
9140............................. Taxi drivers and 0
chauffeurs.
9150............................. Motor vehicle operators, 0
all other.
9200............................. Locomotive engineers and 0
operators.
9230............................. Railroad brake, signal, 0
and switch operators.
9240............................. Railroad conductors and 0
yardmasters.
9260............................. Subway, streetcar, and 0
other rail
transportation workers.
9300............................. Sailors and marine 0
oilers.
9310............................. Ship and boat captains 0
and operators.
9570............................. Ship engineers.......... 4
9340............................. Bridge and lock tenders. 0
9350............................. Parking lot attendants.. 0
9360............................. Service station 0
attendants.
9410............................. Transportation 0
inspectors.
9420............................. Other transportation 0
workers.
9500............................. Conveyor operators and 0
tenders.
9510............................. Crane and tower 0
operators.
9520............................. Dredge, excavating, and 0
loading machine
operators.
9560............................. Hoist and winch 0
operators.
9600............................. Industrial truck and 0
tractor operators.
9610............................. Cleaners of vehicles and 0
equipment.
9620............................. Laborers and freight, 0
stock, and material
movers, hand.
9630............................. Machine feeders and 0
offbearers.
9640............................. Packers and packagers, 0
hand.
9650............................. Pumping station 0
operators.
9720............................. Refuse and recyclable 0
material collectors.
9730............................. Shuttle car operators... 0
9740............................. Tank car, truck, and 0
ship loaders.
9750............................. Material moving workers, 0
all other.
------------------------------------------------------------------------
[[Page 32524]]
Appendix B. Additional Tables
Table B1--Estimated Number of Potentially Affected EAP Workers With the Current and Updated Salary Levels, by
Detailed Industry, Projected for FY2017
----------------------------------------------------------------------------------------------------------------
Affected as
Potentially share of
Industry affected EAP Not-affected Affected potentially
workers (millions) \b\ (millions) \c\ affected
(millions) \a\ (percent)
----------------------------------------------------------------------------------------------------------------
Total \d\....................................... 22.5 18.3 4.2 19
Agriculture..................................... 0.0 0.0 0.0 19
Forestry, logging, fishing, hunting, and 0.0 0.0 0.0 6
trapping.......................................
Mining.......................................... 0.2 0.2 0.0 10
Construction.................................... 0.8 0.7 0.1 16
Nonmetallic mineral product manufacturing....... 0.1 0.1 0.0 11
Primary metals and fabricated metal products.... 0.2 0.2 0.0 13
Machinery manufacturing......................... 0.3 0.3 0.0 10
Computer and electronic product manufacturing... 0.6 0.5 0.0 8
Electrical equipment, appliance manufacturing... 0.1 0.1 0.0 9
Transportation equipment manufacturing.......... 0.6 0.5 0.0 8
Wood products................................... 0.0 0.0 0.0 18
Furniture and fixtures manufacturing............ 0.0 0.0 0.0 19
Miscellaneous and not specified manufacturing... 0.3 0.3 0.0 14
Food manufacturing.............................. 0.2 0.1 0.0 17
Beverage and tobacco products................... 0.1 0.1 0.0 9
Textile, apparel, and leather manufacturing..... 0.1 0.1 0.0 19
Paper and printing.............................. 0.1 0.1 0.0 20
Petroleum and coal products manufacturing....... 0.1 0.1 0.0 9
Chemical manufacturing.......................... 0.4 0.4 0.0 9
Plastics and rubber products.................... 0.1 0.1 0.0 15
Wholesale trade................................. 0.8 0.7 0.1 17
Retail trade.................................... 1.6 1.2 0.4 26
Transportation and warehousing.................. 0.5 0.4 0.1 20
Utilities....................................... 0.3 0.2 0.0 11
Publishing industries (except internet)......... 0.2 0.2 0.0 15
Motion picture and sound recording.............. 0.0 0.0 0.0 54
Broadcasting (except internet).................. 0.2 0.1 0.0 21
Internet publishing and broadcasting............ 0.1 0.0 0.0 10
Telecommunications.............................. 0.4 0.3 0.0 13
Internet service providers and data processing 0.0 0.0 0.0 20
services.......................................
Other information services...................... 0.1 0.0 0.0 31
Finance......................................... 2.0 1.7 0.3 14
Insurance....................................... 1.1 0.9 0.2 19
Real estate..................................... 0.3 0.3 0.1 24
Rental and leasing services..................... 0.1 0.0 0.0 26
Professional and technical services............. 4.0 3.5 0.5 13
Management of companies and enterprises......... 0.1 0.1 0.0 24
Administrative and support services............. 0.5 0.4 0.1 26
Waste management and remediation services....... 0.1 0.0 0.0 23
Educational services............................ 0.9 0.7 0.2 26
Hospitals....................................... 1.1 0.9 0.2 22
Health care services, except hospitals.......... 1.3 1.0 0.3 25
Social assistance............................... 0.4 0.2 0.2 38
Arts, entertainment, and recreation............. 0.4 0.3 0.1 33
Accommodation................................... 0.1 0.1 0.0 21
Food services and drinking places............... 0.3 0.2 0.1 30
Repair and maintenance.......................... 0.1 0.1 0.0 35
Personal and laundry services................... 0.1 0.0 0.0 37
Membership associations and organizations....... 0.4 0.3 0.1 29
Private households.............................. 0.0 0.0 0.0 21
Public administration........................... 0.8 0.6 0.2 24
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013 through FY2015.
\a\ Workers who are white collar, salaried, not eligible for another (non-EAP) overtime exemption, and not in a
named occupation.
\b\ Workers who continue to be exempt after the increases in the salary levels (assuming affected workers'
weekly earnings do not increase to the new salary level).
\c\ Estimated number of workers exempt under the EAP exemptions who would be entitled to overtime protection
under the updated salary levels (if their weekly earnings do not increase to the new salary levels).
\d\ Columns may not sum to total due to rounding.
[[Page 32525]]
VII. Final Regulatory Flexibility Analysis (FRFA)
The Regulatory Flexibility Act of 1980 (RFA) as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
hereafter jointly referred to as the RFA, requires that an agency
prepare an initial regulatory flexibility analysis (IRFA) when
proposing and a final regulatory flexibility analysis (FRFA) when
issuing regulations that will have a significant economic impact on a
substantial number of small entities. The agency is also required to
respond to public comment on the NPRM. See 5 U.S.C. 604. If the rule is
not expected to have a significant economic impact on a substantial
number of small entities, the RFA allows an agency to certify such, in
lieu of preparing an analysis. See 5 U.S.C. 605. The Chief Counsel for
Advocacy of the Small Business Administration was notified of this
Final Rule upon submission of the rule to OMB under E.O. 12866.
Based on commenters' concerns that the IRFA did not clearly explain
the Department's analysis of costs and payroll increases for small
businesses, the Department reorganized and expanded on our analysis
from that included in the NPRM. Commenters also requested that the
Department include more detailed industry-specific information. In
response, the Department has expanded the industry breakdown to the
Census's 51 industries categorization. The Department was not able to
provide more granular data due to small sample sizes causing imprecise
estimates.
Table 36--Overview of Costs to Small Businesses, All Employees at
Establishment Affected Methodology
------------------------------------------------------------------------
Small business costs Cost
------------------------------------------------------------------------
Direct and Payroll Costs
------------------------------------------------------------------------
Average total cost per affected entity $3,265.
\a\.
Range of total costs per affected $847-$75,059.
entity \a\.
Average percent of revenue per affected 0.17%.
entity \a\.
Average percent of payroll per affected 0.87%.
entity \a\.
Average percent of small business 0.14%.
profit.
------------------------------------------------------------------------
Direct Costs
------------------------------------------------------------------------
Regulatory familiarization:
Time (first year).................. 1 hour per establishment.
Time (update years)................ 5 minutes per establishment.
Hourly wage........................ $36.22.
Adjustment:
Time (first year affected)......... 75 minutes per newly affected
worker.
Hourly wage........................ $36.22.
Managerial:
Time (weekly)...................... 5 minutes per affected worker.
Hourly wage........................ $42.31.
------------------------------------------------------------------------
Payroll Increases
------------------------------------------------------------------------
Average payroll increase per affected $2,516.
entity \a\.
Range of payroll increases per affected $647-$54,430.
entity \a\.
------------------------------------------------------------------------
\a\ Using the methodology where all employees at an affected small firm
are affected. This assumption generates upper-end estimates. Lower-end
cost estimates are significantly smaller.
A. Objectives of, and Need for, the Final Rule
The Fair Labor Standards Act (FLSA) requires covered employers to:
(1) Pay employees who are covered and not exempt from the Act's
requirements not less than the Federal minimum wage for all hours
worked and overtime premium pay at a rate of not less than one and one-
half times the employee's regular rate of pay for all hours worked over
40 in a workweek, and (2) make, keep, and preserve records of the
persons employed by the employer and of the wages, hours, and other
conditions and practices of employment. It is widely recognized that
the general requirement that employers pay a premium rate of pay for
all hours worked over 40 in a workweek is a cornerstone of the Act,
grounded in two policy objectives. The first is to spread employment
(or in other words, reduce involuntary unemployment) by incentivizing
employers to hire more employees rather than requiring existing
employees to work longer hours. The second policy objective is to
reduce overwork and its detrimental effect on the health and well-being
of workers.
The FLSA provides a number of exemptions from the Act's minimum
wage and overtime pay provisions, including one for bona fide
executive, administrative, and professional (EAP) employees. Such
employees typically receive more monetary and non-monetary benefits
than most blue collar and lower-level office workers. The exemption
applies to employees employed in a bona fide executive, administrative,
or professional capacity and for outside sales employees, as those
terms are ``defined and delimited'' by the Department. 29 U.S.C.
213(a)(1). The Department's regulations implementing these ``white
collar'' exemptions are codified at 29 CFR part 541.
For an employer to exclude an employee from minimum wage and
overtime protection pursuant to the EAP exemption, the employee
generally must meet three criteria: (1) The employee must be paid a
predetermined and fixed salary that is not subject to reduction because
of variations in the quality or quantity of work performed (the
``salary basis test''); (2) the amount of salary paid must meet a
minimum specified amount (the ``salary level test''); and (3) the
employee's job duties must primarily involve executive, administrative,
or professional duties as defined by the regulations (the ``duties
test''). The salary level requirement was created to identify the
dividing line distinguishing workers who may be performing exempt
duties from the
[[Page 32526]]
nonexempt workers whom Congress intended to be protected by the FLSA's
minimum wage and overtime provisions. Throughout the regulatory history
of the FLSA, the Department has considered the salary level test the
``best single test'' of exempt status. Stein Report at 19. This bright-
line test is easily observed, objective, and clear. Id.
The Department has periodically updated the regulations governing
these tests since the FLSA's enactment in 1938, most recently in 2004
when, among other revisions, the Department created the standard duties
test and paired it with a salary level test of $455 per week. As a
result of inflation, the real value of the salary threshold has fallen
significantly since its last update, making it inconsistent with
Congress' intent to exempt only ``bona fide'' EAP workers.
The standard salary level and the total compensation level required
for highly compensated employees (HCE) have not been updated since
2004. As a result, the standard salary level has declined considerably
in real terms relative to both its 2004 and 1975 values (see section
VI.A.ii.). This is problematic because the exemption now covers workers
who were never intended to be within the exemption, removing them from
minimum wage and overtime protection. Similarly, the HCE annual
compensation requirement is out of date; by the Final Rule's effective
date the share of workers earning above $100,000 annually will have
more than tripled since it was adopted in 2004. Therefore, the
Department believes this rulemaking is necessary in order to restore
the effectiveness of these levels.
The Department's primary objective in this rulemaking is to ensure
that the revised salary levels will continue to provide a useful and
effective test for exemption. The salary levels were designed to
operate as a ready guide to assist employers in deciding which
employees were more likely to meet the duties tests for the exemptions.
If left unchanged, however, the effectiveness of the salary level test
as a means of determining exempt status diminishes as employees' wages
increase over time.
In order to restore the ability of the standard salary level and
the HCE compensation requirements to serve as appropriate bright-line
tests between overtime protected employees and those who may be bona
fide EAP employees, this rulemaking increases the minimum salary level
to come within the exemption from the FLSA minimum wage and overtime
requirements as an EAP employee from $455 to the 40th percentile of
weekly earnings of full-time salaried workers in the lowest-wage Census
Region (currently the South, $913 a week) for the standard test, and
from $100,000 to the annualized value of the 90th percentile of weekly
earnings of full-time salaried workers nationally ($134,004 per year)
for the HCE test. The Department reached the final standard salary and
HCE total compensation levels after considering available data on
actual salary levels currently being paid in the economy, publishing a
proposed rule, reviewing more than 270,000 timely comments, and
considering a range of alternatives. In order to ensure that these
levels continue to function appropriately in the future, the rule also
includes a provision to automatically update these salary levels every
three years.
B. The Agency's Response to the Public Comments
Many of the issues raised by small businesses in the public
comments received on the proposed rule are described in the preamble
and RIA above, which we incorporate herein. Nevertheless, the
significant issues raised by representatives of small businesses and
the U.S. Small Business Administration's Office of Advocacy (Advocacy)
are repeated here.
Most of the comments received concerning small businesses centered
on the burden that the proposed salary level would impose on small
entities. Some commenters expressed concern that the expected cost
increase from the rule would disproportionately affect small entities.
For example, the Wisconsin Agri-Business Association stated that the
proposed rule's increased labor costs ``will be felt most by small
businesses'' because they do not have the ability to adjust to
increased costs ``without detriment to their business or the people
they employ.'' Similarly, the Small Business Legislative Council (SBLC)
explained that small businesses (and especially new business) tend to
operate on very narrow margins, and so such businesses would be
disproportionately affected by this rule. Other comments stated more
generally that the proposed salary level would impose significant
burdens on small businesses. See, e.g., Nebraska Chamber of Commerce
and Industry, Northeastern Retail Lumber Association.
Accordingly, many commenters suggested the Department adopt some
forms of differential treatment for small entities. The Greater
Philadelphia Chamber of Commerce urged that ``a lower compensation
threshold be extended to small businesses and nonprofits, which can be
expected to bear the greatest burden of complying with the proposed
rule as presently written.'' The American Society of Association
Executives and the International Association of Lighting Designers
stated that the Department ``should either set a lower salary level
applicable to all employers or set the minimum salary level at a lower
percentile of the national average for nonprofit and/or small
employers.'' See also American Osteopathic Association; Kentucky
Pharmacists Association. The Greene Law Firm recommended excluding from
the proposed salary level increase employers that qualify as ``small
businesses'' for their industries according to the North American
Industry Classification System (NAICS) codes. The Maine Department of
Labor ``agree[d] that consideration should not focus on the size of the
employer,'' but, citing the FLSA's coverage principles, stated that
``[b]usinesses with low annual dollar volumes should not be held to the
same [salary] level as large corporations.'' Finally, the Association
for Enterprise Opportunity, the California Association for Micro
Enterprise Opportunity, and Women Impacting Public Policy each
requested an exemption for small businesses that fall below the
$500,000 per year threshold for enterprise coverage under the FLSA.
Consistent with the history of the part 541 regulations, the
Department declines to create a lower salary level requirement for
employees employed at small entities, or to exclude such employees from
the salary level test entirely. As we noted in 2004, while ``the FLSA
itself does provide special treatment for small entities under some of
its exemptions . . . the FLSA's statutory exemption for white-collar
employees in section 13(a)(1) contains no special provision based on
size of business,'' 69 FR 22238. In the 78-year history of the part 541
regulations defining the EAP exemption, the salary level requirements
have never varied according to the size or revenue of the employer. Cf.
Stein Report at 5-6 (rejecting proposals to set varying regional salary
levels); see also 69 FR 22238 (stating that implementing differing
salary levels based on business size industry-by-industry ``would
present the same insurmountable challenges'' as adopting regional or
population-based salary levels).
Congress established the threshold for enterprise coverage under
the FLSA (not less than $500,000 in annual gross volume of sales made
or business done).\284\ All employees of an FLSA-
[[Page 32527]]
covered enterprise are entitled to the FLSA's protection, unless the
employee meets the criteria for exemption from the FLSA's minimum wage
and/or overtime pay provisions. Employees of firms which are not
covered enterprises under the FLSA may still be subject to the FLSA's
protections if they are individually engaged in interstate commerce or
in the production of goods for interstate commerce, or in any closely-
related process or occupation directly essential to such production.
Such employees include those who: work in communications or
transportation; regularly use the mails, telephones or interstate
communication, or keep records of interstate transactions; handle,
ship, or receive goods moving in interstate commerce; regularly cross
state lines in the course of employment; or work for independent
employers who contract to do clerical, custodial, maintenance, or other
work for firms engaged in interstate commerce or in the product of
goods for interstate commerce. The Department does not have the
authority to create an exemption from the FLSA's individual coverage
provision.
---------------------------------------------------------------------------
\284\ The FLSA also applies to certain ``named'' activities,
regardless of the annual dollar volume of those enterprises. Named
enterprises include the operation of a hospital, an institution
primarily engaged in the care of the sick, the aged, or the mentally
ill who reside on the premises; a school for mentally or physically
disabled or gifted children; a preschool, an elementary or secondary
school, or an institution of higher education (whether operated for
profit or not for profit); or an activity of a public agency. 29
U.S.C. 203(s)(1)(B)-(C).
---------------------------------------------------------------------------
Several small business commenters raised concerns about the impact
that the proposed salary level would have on small entities in low-wage
regions and industries. See, e.g., Association for Enterprise
Opportunity; Credit Union National Association; National Federation of
Independent Businesses (NFIB); Society of Independent Gasoline
Marketers of America. Kinecta Federal Credit Union stated that ``the
Department of Labor has clearly failed to adequately consider the
potential impact of this rule on small businesses.''
The Department recognizes that many small employers operate in low-
paying regions or industries, and we have historically accounted for
small employers when setting the salary level. See Weiss Report at 14-
15 (setting the long test salary level for executive employees
``slightly lower than might be indicated by the data'' in part to avoid
excluding ``large numbers of the executives of small establishments
from the exemption''). This Final Rule is no exception, as the
Department is setting the salary level at the 40th percentile of weekly
earnings of full-time salaried employees in the lowest-wage Census
Region (as opposed to nationally) in part to account for low-wage
employers, including small entities. This change from the methodology
contained in the NPRM results in a lower standard salary level than
proposed. The final standard salary level represents the 20th
percentile of likely exempt employees working in small
establishments.\285\
---------------------------------------------------------------------------
\285\ The Department does not know which employees work for
small businesses and therefore randomly assigns workers to small
businesses.
---------------------------------------------------------------------------
The National Small Business Association and several other small
business commenters asserted that ``[m]any small businesses have no, or
very few, non-exempt employees with most workers being salaried
professionals or administrative employees. They do not have timekeeping
and payroll systems in place that can accommodate the addition of many
more non-exempt employees. Thus, the burden of these changes will fall
much more heavily on small businesses than on their larger
competitors.'' Similarly, NFIB stated that ``small companies typically
lack specialized compliance personnel'' to adjust to new regulations,
forcing business owners to oversee compliance efforts themselves or pay
for outside consultation. The Louisiana Small Business Advisory Council
similarly stated: ``The cost of compliance for small businesses will be
much greater than estimated by the DOL. Lots of small businesses have a
minimal number of non-exempt employees, with most workers being
salaried professionals or administrative employees.'' Identical or
nearly identical ``campaign'' comments from small businesses also
stated that ``[s]mall businesses are often not equipped to monitor the
activities of their employees in order to regulate their time.
Companies with fewer than 20 employees rarely have a dedicated HR
department, so the creation of new hourly reporting and tracking
requirements are likely to be a much greater burden on these companies
that do not currently face them. The result will be confusion and
excess cost for individual business owners.''
The Department believes that most, if not all, small businesses,
like larger businesses, employ a mix of exempt and overtime-protected
workers. As such, employers already have policies and systems in place
for scheduling workers and monitoring overtime hours worked and the
corresponding overtime premium pay. The Department recognizes that the
Final Rule will result in the reclassification of some workers of small
businesses from exempt to nonexempt, and expects that employers will
modify their existing policies and systems to accommodate this change.
NFIB asserted that ``the IRFA underestimates compliance costs
because it does not take into account business size when estimating the
time it takes to read, comprehend and implement the proposed changes.''
The Louisiana Small Business Advisory Council similarly commented that
the Department underestimated adjustment costs, stating that small
businesses ``do not have timekeeping and payroll systems in place that
can accommodate the addition of new, non-exempt employees.''
In the Final Rule, the Department has clarified the explanation of
our method for estimating the number of affected workers employed by
small firms, and the number of small firms affected. The Department
also reconsidered its estimate of the number of affected workers who
work some overtime and increased in this Final Rule its estimate of
affected workers who work overtime to 40 percent, up from 24 percent in
the IRFA. Additionally, in response to comments, the Department has
increased estimated regulatory familiarization and adjustment costs in
the Final Rule.
Because there was insufficient data to estimate the number of
affected workers employed by a typical small entity, the Department
presented in the IRFA a range of results based on the assumption that
only one employee per small firm was affected (the lower bound), and,
alternatively, based on the assumption that all employees in a small
firm were affected (the upper bound estimate of impacts per small
establishment). Assuming the upper bound scenario, that all employees
in a firm were affected, the IRFA showed that on average, costs and
payroll increases for small affected firms were less than 0.9 percent
of payroll and less than 0.2 percent of revenues. The largest impacts
were found in the food services and drinking places industry, where
costs and payroll increases composed 0.84 percent of revenues. Due to
the mix of exempt and overtime-protected workers employed by small
businesses, the actual impact in this industry would almost certainly
be smaller than shown in this upper bound scenario analysis.
The Department's adjustment cost estimate in the IRFA of one hour
per newly affected worker was meant to be an average across all
establishments. The Department acknowledges that some small businesses
may face higher costs because of this rulemaking; however, since there
is no data indicating the magnitude of this cost
[[Page 32528]]
(compared to other businesses), the Department has not distinguished
between establishment sizes in the cost estimates. However, in response
to comments, the Department has increased the average adjustment time
from one hour to 75 minutes per affected worker and we have added
additional time for regulatory familiarization.
The Department received many comments in response to our proposal
in the NPRM to automatically update the standard salary and HCE total
annual compensation requirements. As discussed in section IV.E.i., some
commenters asserted that the automatic updating mechanism introduced in
this rulemaking may violate the RFA. For example, Seyfarth Shaw urged
the Department to not proceed with automatic updating in part because
this mechanism would ``effectively bypass'' this authority. The
Partnership to Protect Workplace Opportunity (PPWO) raised similar RFA
concerns and characterized the Department's rulemaking as a ```super-
proposal,' deciding once and for all what (in the Department's belief)
is best without consideration of its impact now or in the future.''
PPWO further stated that ``it would not be possible for the Department
to accurately estimate the impact of the automatic increases in future
years as the workforce and the economy are always changing.''
The RFA requires a regulatory flexibility analysis to accompany any
agency final rule promulgated under 5 U.S.C. 553. See 5 U.S.C. 603-604.
In accordance with this requirement, this section estimates the future
costs of automatic updating using the fixed percentile method. The RFA
only requires that such analyses accompany rulemaking, and commenters
have not cited any RFA provision that would require the Department to
conduct a new regulatory flexibility analysis before each automatic
salary level update. In response to PPWO's concern about this
rulemaking setting the salary level updating process ``once and for
all,'' we reiterate that this Final Rule does not preclude further
rulemaking should the Department determine that future conditions
indicate that revisions to the salary level updating methodology may be
warranted.
Several commenters addressed the potential effects that an annual
automatic updating mechanism could have on small entities. Advocacy
commented that the Department should analyze the impact of updates on
small businesses. The NFIB and the Small Business Legislative Council
asserted that annual automatic updates to the standard salary level
would create perpetual budgeting uncertainty for small entities, and
objected that, under our proposal, small employers would only know the
updated salary level 60 days before it takes effect. The Maine
Department of Labor asserted that small businesses ``lack the budget
flexibility to provide annual raises to all exempt workers,'' while the
National Grocers Association and Pizza Properties commented that annual
automatic updates might reduce the prevalence or effectiveness of
performance-based incentive pay. Several small business commenters,
including Alpha Graphics and many individual employers who did not name
their organizations, worried that automatic updating would likely
``escalate the salary threshold level to an inappropriately high level
in a matter of a few years.''
Some small business commenters supported the idea of automatic
updating, provided the Department make other salary level changes. See,
e.g., Board Game Barrister (favoring annual updating using the CPI-U
after the new salary level is phased in); Corporate Payroll Services
(agreeing that salary level ``should be indexed to inflation,'' but
favoring a lower initial salary level); Think Patented (favoring
updating using ``the Current Population Survey Weekly Earnings Index,
not the CPI-U'')(emphasis in comment). The Society of Independent
Gasoline Marketers of America, which favored a lower salary level in
part to protect small business fuel retailers, supported automatically
updating the standard salary threshold every three to five years
``using a fixed percentile of wages based on data sets that take into
account regional and industry wage disparities.'' See also Wisconsin
Bankers Association (supporting automatic updates to regionally-
adjusted salary level every five years). ANCOR and several non-profit
care providers stated that ``steadier, more predictable'' salary level
changes ``will likely benefit providers who will be able to adjust to
smaller, more frequent changes better than to larger, less frequent
ones.''
As explained earlier, this Final Rule introduces a mechanism to
automatically update the standard salary and HCE total annual
compensation thresholds, but with a number of important adjustments
from the options considered in the NPRM. First, the Department will
update the standard salary level by using regional data--specifically,
the 40th percentile of weekly earnings of full-time salaried workers in
the lowest wage Census Region--rather than national data. Second,
future automatic updates to the standard salary and HCE compensation
thresholds will take place every three years, rather than annually.
Finally, the Department will publish the updated standard salary and
HCE compensation thresholds at least 150 days before they take effect,
instead of just 60 days. We believe that these three significant
changes appropriately address the concerns raised by small business
commenters, while ensuring that the earnings thresholds for the EAP
exemption will remain effective and up to date over time. The triennial
automatic updating mechanism introduced in this Final Rule should
benefit employers of all sizes going forward by avoiding the
uncertainty and disruptiveness of larger increases that would likely
occur as a result of irregular updates.
C. Comment by the Chief Counsel for Advocacy of the Small Business
Administration
SBA's Office of Advocacy (Advocacy) expressed similar concerns as
those expressed by other small business commenters, based upon its
listening sessions and roundtables regarding the NPRM. Advocacy stated
that it was concerned that the IRFA did not properly analyze the
numbers of small businesses affected by this regulation and
underestimated their compliance costs, and stated that the Department
should publish a supplemental IRFA to reanalyze small business impacts.
The comment stated that the IRFA ``analyzes small entities very
broadly, not fully considering how the economic impact affects various
categories of small entities differently.'' The comment emphasized that
the Department should not have analyzed industries by general 2- or 3-
digit NAICS codes when ``more specific data are readily available,''
and should have evaluated the impact on small non-profits and small
governmental jurisdictions. As presented below, the Department revised
its analysis in this FRFA to display the impact on industries using 6-
digit NAICS codes, rather than the 2- and 3-digit codes, in order to
present a more detailed assessment of specific impacts.\286\
---------------------------------------------------------------------------
\286\ The Department estimates the number of small businesses
and their employees using SUSB data and the SBA size standards at
the 6-digit NAICS level. The most detailed industry level in the CPS
is the 3-digit Census code level (262 industries total), which is
considerably less granular than 6-digit NAICS. Moreover, there is
not always a clear one-to-one correspondence between the Census and
NAICS codes; 3-digit Census industry codes correspond to a mix of 4-
digit, 5-digit, and even occasionally partial 6-digit industries.
See https://usa.ipums.org/usa/volii/indcross03.shtml for a crosswalk
between Census industry codes and NAICS. While results can be
tabulated at the 3-digit Census level, small sample sizes render
statistical inference unreliable.
---------------------------------------------------------------------------
[[Page 32529]]
Advocacy also stated that the Department should have analyzed and
considered the impact of the proposed standard salary level in light of
regional and industry differences. As explained in the preamble and in
the economic impact analysis, the Final Rule differs from the proposed
rule in that it bases the standard salary level on earnings in the
lowest-wage Census Region, which is currently the South. This change
will provide relief not only to small businesses and others in low-wage
industries and regions, but also to small non-profit entities and small
governmental jurisdictions. As previously explained, the Department
believes that the standard salary level set in this Final Rule
effectively distinguishes between employees who are overtime eligible
and those who may be bona fide executive, administrative, or
professional employees, without necessitating a return to a duties test
that sets specific limits on the performance of nonexempt work, like
the more detailed ``long'' duties test that existed before 2004. The
new salary level not only accounts for the growth in salaries that has
taken place since the salary level was updated in 2004, but also
addresses the Department's conclusion that the 2004 salary threshold
was set too low in light of that rulemaking's switch to a single duties
test that no longer set any specific limits on the performance of
nonexempt work. Setting a salary level in this Final Rule significantly
below the level proposed by the Department would have required a more
rigorous duties test than the current standard duties test in order to
effectively distinguish between white collar employees who are overtime
protected and those who may be bona fide EAP employees. Commenters
representing employers overwhelmingly opposed DOL making changes to the
duties test and stated that changes to the duties test are more
burdensome for businesses. Further, by adjusting the Final Rule salary
level to focus on the lowest-wage Census Region instead of a national
level, we have removed the effect of the three higher earnings Census
Regions on the salary level, ensuring the salary level is not driven by
earnings in high- or even middle-wage regions of the country. We note
that the South Census Region--the same region on which the Department
relied in setting the salary level in 2004--is comprised of the three
lowest-wage Census divisions. The Department believes that the lower
standard salary level set in the Final Rule is appropriate for small
businesses.
Advocacy also stated that the IRFA underestimated the regulatory
familiarization, adjustment, managerial costs, and payroll costs, of
the proposed rule on small entities, especially because small entities
often have limited or no human resources personnel on staff. As
discussed elsewhere in the preamble and the economic impact analysis,
the FRFA increases the number of affected workers who work overtime,
accounts for additional regulatory familiarization time each year that
salary levels are adjusted and accounts for additional adjustment costs
by increasing the adjustment time to 75 minutes per affected
worker.\287\ Moreover, the Department expects that small entities will
rely upon compliance assistance materials provided by the Department,
including the small entity compliance guide we will publish, or
industry associations to become familiar with the Final Rule.
Additionally, we note that the Final Rule is quite limited in scope as
it primarily makes changes to the salary component of the part 541
regulation, even though the NPRM had raised questions about whether we
also should make changes to the duties tests for exemption, which would
have required more time to understand. With regard to adjustment costs,
as noted above, the Department has increased the number of affected
workers who work overtime and increased adjustment costs. The estimated
75 minutes per employee for adjustment costs is an average -allotting
the full 75 minutes for the approximately 60 percent of the employees
who do not work overtime (Type 1 employees) and those whose salaries
are well below the new standard salary level or only occasionally work
overtime--even though employers actually will need to spend little to
no time considering those workers. This leaves several hours for
employers to consider how to respond with regard to other employees.
Finally, as previously mentioned, the Department believes that most
entities have at least some nonexempt employees and, therefore, already
have policies and systems in place for monitoring and recording their
hours. We believe that applying those same policies and systems to the
workers whose exemption status changes will, on average, not require
more than five minutes per week per worker who works overtime in
managerial time cost, as employers will rely on policies such as a
prohibition against working overtime without express approval or a
standard weekly schedule of assigned hours. The Department notes that
most affected employees who work overtime do not work large amounts of
overtime hours and we therefore do not believe that employers will
spend hours managing the time of these employees. Seventy-five percent
of currently exempt employees average less than 10 hours of overtime
per week. The Department believes that an average of 5 additional
minutes per week managing the hours of each newly exempt worker who
works overtime is appropriate.
---------------------------------------------------------------------------
\287\ The estimates of regulatory familiarization and adjustment
costs are averages and some small entities may take more or less
time to comply with this rule.
---------------------------------------------------------------------------
As shown in Table 41, the Department estimates that there will be a
range of costs for small entities from this rule, ranging from $847 to
$75,059. Advocacy commented that small businesses were concerned that
the Department's estimates of compliance costs were neither transparent
nor accurate; and that small businesses have told Advocacy that their
payroll costs would be significantly more costly than estimated by the
Department. The Department does not believe there was sufficient
information from small business commenters to determine the accuracy of
those higher estimates.
Advocacy also suggested that the Department consider non-financial
impacts that it asserted would accrue to small entities, such as the
potential for lower employee morale or the loss of scheduling
flexibility if employees are converted from salaried to hourly. The
Department addresses these and other possible impacts that cannot be
quantified in the preamble and economic impact analysis. As explained
above, even if an employee is reclassified as nonexempt, there is no
requirement that the employer convert the employee's pay status from
salaried to hourly. Employers may choose to continue to pay these
formerly exempt workers a salary (with the overtime premium for hours
in excess of 40 in those weeks when the employee works overtime). In
addition, as we noted in the preamble, based on the available research
the Department does not believe that workers will experience the
significant change in flexibility that some employers envisioned if the
employer reclassifies them as nonexempt. See section IV.A.iv. The
Department believes that while individual experiences vary, the rule
would benefit employees in a variety of ways (e.g., through an
increased salary, overtime earnings when the employee has to work extra
hours, time off).
[[Page 32530]]
Further, a study by Lonnie Golden,\288\ referenced by the National
Employment Law Project (NELP), found using data from the General Social
Survey (GSS) that ``[i]n general, salaried workers at the lower (less
than $50,000) income levels don't have noticeably greater levels of
work flexibility that they would `lose' if they became more like their
hourly counterparts.''
---------------------------------------------------------------------------
\288\ Golden, L. (2014). Flexibility and Overtime Among Hourly
and Salaried Workers. Economic Policy Institute.
---------------------------------------------------------------------------
Advocacy also expressed concern ``that the proposed rule does not
count worker bonuses or commissions as part of the salary
computation.'' The Department notes that the Final Rule, for the first
time, does modify the salary basis rule to permit employers to count
nondiscretionary bonuses and other nondiscretionary incentive payments
such as commissions toward up to ten percent of the standard salary
level requirement (see section IV.C.).
Finally, Advocacy suggested that the Department gradually phase in
any changes to the salary level, and provide longer than the four
months provided in 2004 for the implementation of the rule, suggesting
we provide small businesses up to 12-18 months. As discussed in the
preamble, the Department does not believe a phase-in is necessary given
that this Final Rule adopts a methodology resulting in a lower salary
level than the proposed methodology, and the Department will
automatically update the salary level every three years rather than
annually as proposed. Further, even though this Final Rule changes only
salary-related requirements, unlike the 2004 rule which completely
updated part 541 including the duties requirements, the Department is
providing more than 180 days of notice to all employers before the
Final Rule's effective date of December 1, 2016, and we will provide at
least 150 days of notice of future automatic updates to the salary
requirement.
C. Description of the Number of Small Entities and Employees to Which
the Final Rule Will Apply
i. Definition of Small Entity
The RFA defines a ``small entity'' as a (1) small not-for-profit
organization, (2) small governmental jurisdiction, or (3) small
business. The Department used the entity size standards defined by SBA
to classify entities as small in effect as of February 26, 2016 for the
purpose of this analysis. SBA establishes separate standards for
individual 6-digit NAICS industry codes, and standard cutoffs are
typically based on either the average number of employees, or the
average annual receipts. For example, small businesses are generally
defined as having fewer than 500, 1,000, or 1,250 employees in
manufacturing industries and less than $7.5 million in average annual
receipts for many nonmanufacturing industries. However, some exceptions
do exist, the most notable being that depository institutions
(including credit unions, commercial banks, and non-commercial banks)
are classified by total assets. Small governmental jurisdictions are
another noteworthy exception. They are defined as the governments of
cities, counties, towns, townships, villages, school districts, or
special districts with populations of less than 50,000 people.\289\
---------------------------------------------------------------------------
\289\ See http://www.sba.gov/advocacy/regulatory-flexibility-act
for details.
---------------------------------------------------------------------------
ii. Number of Small Entities and Employees
The Department obtained data from several different sources to
determine the number of small entities and employment in these entities
for each industry. However, the Statistics of U.S. Businesses (SUSB,
2012) was used for most industries. Industries for which the Department
used data from alternative sources include credit unions,\290\
commercial and non-commercial banks,\291\ agriculture,\292\ and public
administration.\293\ The Department used the latest available data in
each case, so data years differ between sources.\294\
---------------------------------------------------------------------------
\290\ National Credit Union Association. (2010). 2010 Year End
Statistics for Federally Insured Credit Unions.
\291\ Federal Depository Insurance Corporation. (2015).
Statistics on Depository Institutions--Compare Banks. Available at:
https://www5.fdic.gov/SDI/index.asp.
\292\ United States Department of Agriculture. (2014). 2012
Census of Agriculture: United States Summary and State Data: Volume
1, Geographic Area Series, Part 51. Available at: http://www.agcensus.usda.gov/Publications/2012/Full_Report/Volume_1,_Chapter_1_US/usv1.pdf.
\293\ Hogue, C. (2012). Government Organization Summary Report:
2012. Available at: http://www2.census.gov/govs/cog/g12_org.pdf.
\294\ Industry data are not displayed if the sample size of
affected workers in small establishments is less than 10.
---------------------------------------------------------------------------
In the SUSB data, for each industry, the total number of small
establishments and employees is organized into categories defined using
employment, annual revenue, and assets. The Department combined these
categories with the corresponding SBA standards to estimate the
proportion of establishments and workers in each industry who are
considered small or employed by a small entity. The general
methodological approach was to classify all establishments or employees
in categories below the SBA cutoff as in ``small entity''
employment.\295\ If a cutoff fell in the middle of a defined category,
a uniform distribution of employees across that bracket was assumed in
order to determine what proportion should be classified as in small
entity employment. The Department assumed that the small entity
distribution across revenue categories for other depository
institutions, which was not separately represented in FDIC asset data,
was similar to that of credit unions. The share of employment estimated
as small was applied to the CPS data. This is necessary for estimating
affected workers in small entities.
---------------------------------------------------------------------------
\295\ The SUSB defines employment as of March 12th.
---------------------------------------------------------------------------
The Department also estimated the number of small establishments by
employer type (non-profit, for profit, government). The calculation of
number of establishments by employer type is similar to the calculation
of number of establishments by industry. However, instead of using SUSB
data by industry, the Department used SUSB data by Legal Form of
Organization for non-profit and for profits establishments and data
from the 2012 Census of Governments for small governments. The 2012
Census of Governments report includes a breakdown of state and local
governments by population of their underlying jurisdiction, allowing us
to estimate the number of governments that are small. The Department
calculated the number of affected small employees from CPS data by
tabulating observations where the respondent is both employed by a non-
profit/for profit/government entity and is flagged as being employed in
a small establishment. However, it should be noted that CPS respondents
are flagged as employed in a small business based on their industry and
the industry distribution of employment in small firms. Therefore, this
methodology assumes the propensity of a business to be small is not
correlated with employer type.
iii. Number of Small Entities Impacted by the Final Rule
Table 37 presents the estimated number of establishments and small
establishments in the U.S. (Hereafter, the terms ``establishment'' and
``entity'' are used interchangeably and are considered equivalent for
the purposes of this FRFA.) \296\ Based on the
[[Page 32531]]
methodology described above, the Department found that of the 7.5
million establishments relevant to this analysis, more than 80 percent
(6.0 million) are small by SBA standards. These small establishments
employ almost 50 million workers, about 37 percent of workers employed
by all establishments (excluding self-employed, unpaid workers, and
members of the armed forces), and account for roughly a third of total
payroll ($2.3 trillion of $6.5 trillion).\297\
---------------------------------------------------------------------------
\296\ SUSB reports data by size designations where the size
designations are based on ``enterprises'' (a business organization
consisting of one or more domestic establishments that were
specified under common ownership or control). However, the number of
enterprises is not reported for the size designations. Instead, SUSB
reports the number of ``establishments'' (individual plants,
regardless of ownership) and ``firms'' (a collection of
establishments with a single owner within a given state and
industry) associated with enterprises size categories. Therefore,
numbers in this analysis are for the number of establishments
associated with small enterprises, which may exceed the number of
small enterprises. We chose to base the analysis on the number of
establishments rather than firms for a more conservative estimate
(potential overestimate) of the number of small businesses.
\297\ Since information is not available about employer size in
the CPS MORG, respondents were randomly assigned as working in a
small business based on the SUSB probability of employment in a
small business by detailed Census industry. Annual payroll was
estimated based on the CPS weekly earnings of workers by industry
size.
Table 37--Number of Establishments and Employees by SBA Size Standards, by Industry and Employer Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Workers (1,000s) \a\ Annual payroll
Establishments ---------------------------------------------------------------- (billions)
Industry/Employer type (1,000s) Small business -----------------------
Total Small Total employed Total Small
--------------------------------------------------------------------------------------------------------------------------------------------------- -------
Total.............................................. 7,514.8 6,049.5 136,307.0 49,768.7 $6,465.8 $2,275.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
Agriculture........................................ 9.1 8.4 \c\ \c\ \c\ \c\
Forest., log., fish., hunt., and trap.............. 12.9 12.6 \c\ \c\ \c\ \c\
Mining............................................. 28.9 23.3 1,041.1 420.3 $74.2 $29.6
Construction....................................... 652.9 634.3 7,458.5 4,704.7 364.3 229.3
Nonmetallic mineral prod. manuf.................... 15.2 11.7 400.6 192.3 20.1 9.5
Prim. metals and fab. metal prod................... 60.1 56.4 1,623.1 999.0 80.3 48.7
Machinery manufacturing............................ 24.2 22.1 1,312.5 715.2 73.7 39.1
Computer and elect. prod. manuf.................... 13.2 11.8 1,283.3 598.8 95.4 44.8
Electrical equip., appliance manuf................. 5.8 5.0 \c\ \c\ \c\ \c\
Transportation equip. manuf........................ 11.8 10.2 2,340.0 600.1 141.6 34.0
Wood products...................................... 13.7 12.6 386.7 260.6 15.6 10.6
Furniture and fixtures manuf....................... 16.3 15.9 380.8 274.7 14.7 10.6
Misc. and not spec. manuf.......................... 29.6 28.5 1,355.5 801.2 71.0 41.4
Food manufacturing................................. 25.8 22.7 1,676.7 769.2 65.9 28.3
Beverage and tobacco products...................... 5.1 4.5 279.4 138.3 15.1 7.1
Textile, app., and leather manuf................... 16.2 15.7 532.8 365.5 21.2 14.1
Paper and printing................................. 32.0 29.8 880.4 491.1 42.0 22.6
Petroleum and coal prod. manuf..................... 2.2 1.2 \c\ \c\ \c\ \c\
Chemical manufacturing............................. 13.3 10.6 1,316.6 538.3 87.2 34.3
Plastics and rubber products....................... 12.7 10.6 502.0 235.9 23.3 10.6
Wholesale trade.................................... 420.5 334.7 3,474.1 1,572.2 184.6 82.5
Retail trade....................................... 1,063.8 685.4 15,618.2 5,224.8 520.6 191.1
Transport. and warehousing......................... 214.5 170.7 5,780.1 1,481.6 274.7 65.6
Utilities.......................................... 17.8 7.6 1,264.6 260.0 81.1 15.8
Publishing ind. (ex. internet)..................... 27.1 20.9 562.0 242.9 33.2 14.0
Motion picture and sound recording................. 24.9 21.7 332.6 119.4 17.2 6.5
Broadcasting (except internet)..................... 9.6 5.3 580.2 129.1 34.3 7.3
Internet publishing and broadcasting............... 6.9 5.8 \c\ \c\ \c\ \c\
Telecommunications................................. 49.2 11.1 961.6 189.1 64.9 12.4
Internet serv. providers and data.................. 14.0 9.2 \c\ \c\ \c\ \c\
Other information services......................... 3.6 3.1 258.4 75.9 11.5 3.1
Finance............................................ 298.2 115.0 4,440.6 689.2 295.9 46.7
Insurance.......................................... 176.3 137.6 2,613.4 670.4 159.2 40.6
Real estate........................................ 295.7 251.5 1,886.0 1,150.2 91.8 55.5
Rental and leasing services........................ 54.0 26.9 374.0 109.7 16.5 4.4
Professional and technical services................ 859.2 778.9 8,793.5 4,164.1 626.8 288.4
Management of companies and enterprises............ 52.2 32.2 181.9 55.1 10.0 3.2
Admin. and support services........................ 363.7 310.7 4,905.9 2,186.4 174.7 73.5
Waste manag. and remed. services................... 23.8 17.8 524.3 209.9 23.7 9.4
Educational services............................... 95.9 84.0 13,615.2 3,008.1 675.4 142.1
Hospitals.......................................... 6.7 1.6 6,979.2 336.9 384.5 18.9
Health care services, except hospitals............. 663.8 545.6 10,000.5 4,754.6 424.1 200.8
Social assistance.................................. 163.3 133.1 2,829.2 1,567.8 94.9 49.7
Arts, entertainment, and recreation................ 125.1 115.1 2,591.0 1,255.8 89.0 43.5
Accommodation...................................... 64.2 53.7 1,511.1 557.6 50.7 18.7
Food services and drinking places.................. 598.5 470.6 8,534.3 2,315.2 197.2 53.6
Repair and maintenance............................. 211.2 196.4 1,572.6 1,167.9 63.5 45.9
Personal and laundry services...................... 212.7 186.2 1,586.7 1,185.9 46.1 34.4
[[Page 32532]]
Membership associations & organizations............ 307.1 296.3 1,991.2 1,458.7 90.1 65.1
Private households................................. \b\ \b\ \c\ \c\ \c\ \c\
Public administration \d\.......................... 90.1 72.8 7,076.8 689.9 419.4 35.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Employer Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-profit, private \e\............................ 566.7 489 9,658.10 3,997.00 472.70 176.10
For profit, private................................ 6,865.10 5,491.30 105,094.30 43,310.80 4,849.50 1,979.40
Government (state and local)....................... 90.1 72.8 17,819.60 2,460.90 896.60 120.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Establishment data are from the Survey of U.S. Businesses 2012; worker and payroll data from CPS MORG using pooled data for FY2013-FY2015
projected to reflect FY2017.
\a\ Excludes the self-employed and unpaid workers.
\b\ SUSB does not provide information on private households.
\c\ Data not displayed because sample size of affected workers in small establishments is less than 10.
\d\ Establishment number represents the total number of governments, including state and local. Data from Government Organization Summary Report: 2012.
\e\ As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed by enterprises that do not meet the
enterprise coverage requirements because there is no reliable way of estimating this population. The estimates also do not exclude workers at non-
covered enterprises who are not individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers generally, it may have a larger impact (and
result in a larger overestimate) for workers in non-profits because when determining enterprise coverage only revenue derived from business
operations, not charitable activities, are included.
iv. Number of Affected Small Entities and Employees
For this Final Rule analysis, to estimate the probability that an
exempt EAP worker is employed by a small establishment, the Department
assumed this probability is equal to the proportion of all workers
employed by small establishments in the corresponding industry. That
is, if 50 percent of workers in an industry are employed in small
entities, then on average 1 out of every 2 exempt EAP workers in this
industry is expected to be employed by a small establishment.\298\ The
Department applied these probabilities to the population of exempt EAP
workers in order to find the number of workers (total exempt EAP
workers and total affected by the rule) employed by small entities. No
data are available to determine whether small businesses (or small
businesses in specific industries) are more or less likely than non-
small businesses to employ exempt EAP workers or affected EAP workers.
Therefore, the best assumption available is to assign the same rates to
all small and non-small businesses.\299\
---------------------------------------------------------------------------
\298\ The Department used CPS microdata to estimate the number
of affected workers. This was done individually for each observation
in the relevant sample by randomly assigning them a small business
status based on the best available estimate of the probability of a
worker to be employed in a small business in their respective
industry (3-digit Census codes). While aggregation to the 262 3-
digit Census codes is certainly possible, over half of these
industry codes contain 7 or fewer observations, including one fifth
that have one or zero observations. The Department does not consider
any breakdowns based on these numbers reliable.
\299\ There is a strand of literature that indicates that small
establishments tend to pay lower wages than larger establishments.
This may imply that workers in small businesses are more likely to
be affected than workers in large businesses; however, the
literature does not make clear what the appropriate alternative rate
for small businesses should be.
---------------------------------------------------------------------------
The Department estimated that 1.6 million of the 4.2 million
affected workers (37.1 percent) are employed by small entities (Table
38). This composes about 3.1 percent of the 49.8 million workers
employed by small entities. The sectors with the highest total number
of affected workers employed by small establishments are: professional
and technical services (256,800); health care services, except
hospitals (148,900); and retail trade (147,000). The sectors with the
largest percent of small business workers who are affected include:
management of companies and enterprises (8.9 percent); motion picture
and sound recording (7.6 percent); and insurance (7.2 percent).
Table 38--Number of Affected Workers Employed by Small Establishments, by Industry and Employer Type
----------------------------------------------------------------------------------------------------------------
Workers (1,000s) Affected workers (1,000s) \a\
---------------------------------------------------------------
Industry Small business Small business
Total employed Total employed
----------------------------------------------------------------------------------------------------------------
Total........................................... 136,307.0 49,768.7 4,227.6 1,567.5
----------------------------------------------------------------------------------------------------------------
Industry
----------------------------------------------------------------------------------------------------------------
Agriculture..................................... \c\ \c\ \c\ \c\
Forest., log., fish., hunt., and trap........... \c\ \c\ \c\ \c\
[[Page 32533]]
Mining.......................................... 1,041.1 420.3 21.8 11.8
Construction.................................... 7,458.5 4,704.7 127.3 83.1
Nonmetallic mineral prod. manuf................. 400.6 192.3 7.1 3.9
Prim. metals and fab. metal prod................ 1,623.1 999.0 29.5 18.1
Machinery manufacturing......................... 1,312.5 715.2 32.1 17.4
Computer and elect. prod. manuf................. 1,283.3 598.8 47.9 22.1
Electrical equip., appliance manuf.............. \c\ \c\ \c\ \c\
Transportation equip. manuf..................... 2,340.0 600.1 47.9 14.0
Wood products................................... 386.7 260.6 7.0 4.8
Furniture and fixtures manuf.................... 380.8 274.7 7.9 5.6
Misc. and not spec. manuf....................... 1,355.5 801.2 44.4 26.9
Food manufacturing.............................. 1,676.7 769.2 27.5 13.1
Beverage and tobacco products................... 279.4 138.3 5.9 2.8
Textile, app., and leather manuf................ 532.8 365.5 16.1 10.4
Paper and printing.............................. 880.4 491.1 25.8 14.3
Petroleum and coal prod. manuf.................. \c\ \c\ \c\ \c\
Chemical manufacturing.......................... 1,316.6 538.3 37.7 12.7
Plastics and rubber products.................... 502.0 235.9 12.1 6.5
Wholesale trade................................. 3,474.1 1,572.2 144.5 62.1
Retail trade.................................... 15,618.2 5,224.8 417.9 147.0
Transport. and warehousing...................... 5,780.1 1,481.6 101.8 23.3
Utilities....................................... 1,264.6 260.0 31.1 6.9
Publishing ind. (ex. internet).................. 562.0 242.9 32.3 14.7
Motion picture and sound recording.............. 332.6 119.4 22.6 9.1
Broadcasting (except internet).................. 580.2 129.1 38.5 8.2
Internet publishing and broadcasting............ \c\ \c\ \c\ \c\
Telecommunications.............................. 961.6 189.1 44.7 7.7
Internet serv. providers and data............... \c\ \c\ \c\ \c\
Other information services...................... 258.4 75.9 21.4 4.0
Finance......................................... 4,440.6 689.2 277.0 46.3
Insurance....................................... 2,613.4 670.4 199.3 48.3
Real estate..................................... 1,886.0 1,150.2 78.4 44.9
Rental and leasing services..................... 374.0 109.7 15.9 5.1
Professional and technical services............. 8,793.5 4,164.1 538.1 256.8
Management of companies and enterprises......... 181.9 55.1 16.3 4.9
Admin. and support services..................... 4,905.9 2,186.4 136.9 49.7
Waste manag. and remed. services................ 524.3 209.9 12.8 5.9
Educational services............................ 13,615.2 3,008.1 230.2 44.0
Hospitals....................................... 6,979.2 336.9 241.5 13.2
Health care services, except hospitals.......... 10,000.5 4,754.6 329.3 148.9
Social assistance............................... 2,829.2 1,567.8 155.2 91.5
Arts, entertainment, and recreation............. 2,591.0 1,255.8 124.4 66.9
Accommodation................................... 1,511.1 557.6 26.6 11.5
Food services and drinking places............... 8,534.3 2,315.2 84.0 26.1
Repair and maintenance.......................... 1,572.6 1,167.9 36.0 27.3
Personal and laundry services................... 1,586.7 1,185.9 23.0 16.3
Membership associations & organizations......... 1,991.2 1,458.7 115.8 84.5
Private households.............................. \c\ \c\ \c\ \c\
Public administration (d)....................... 7,076.8 689.9 201.4 16.5
----------------------------------------------------------------------------------------------------------------
Employer Type
----------------------------------------------------------------------------------------------------------------
Non-profit, private (e)......................... 9,658.10 3,997.00 456.2 216.2
For profit, private............................. 105,094.30 43,310.80 3,308.80 1,306.80
Government (state and local).................... 17,819.60 2,460.90 451.7 44.5
----------------------------------------------------------------------------------------------------------------
Note: Establishment data are from the Survey of U.S. Businesses 2012; worker data are from CPS MORG using pooled
data for FY2013-FY2015 projected to reflect FY2017.
\a\ Estimation of affected workers employed by small establishments was done at the Census 4-digit occupational
code and industry level. Therefore, at the more aggregated 51 industry level shown in this table, the ratio of
small business employed to total employed does not equal to the ratio of affected small business employed to
total affected for each industry, nor does it equal the ratio for the national total because relative industry
size, employment, and small business employment differs from industry to industry.
\b\ Establishment number represents the total number of governments, including state and local.
\c\ Data not displayed because sample size of affected workers in small establishments is less than 10.
[[Page 32534]]
\e\ As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed
by enterprises that do not meet the enterprise coverage requirements because there is no reliable way of
estimating this population. The estimates also do not exclude workers at non-covered enterprises who are not
individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers
generally, it may have a larger impact (and result in a larger overestimate) for workers in non-profits
because when determining enterprise coverage only revenue derived from business operations, not charitable
activities, are included.
The Department estimated a range of impacts for small entities. To
estimate the number of small establishments that will be affected
because they employ affected workers the Department assumed that each
small establishment employs no more than one affected worker, meaning
that at most 1.6 million of the 6.0 million small establishments will
employ an affected worker.\300\ Thus, these assumptions provide an
upper bound estimate of the number of affected small establishments
(although it provides a lower bound estimate of the impact per small
establishment because costs are spread over a larger number of
establishments).\301\
---------------------------------------------------------------------------
\300\ This assumes 1.6 million of the 4.2 million affected
workers are employed in small businesses (see Table 3).
\301\ Note that if we underestimated the number of affected
workers employed by small businesses, then we underestimated the
upper bound of the number of affected small businesses.
---------------------------------------------------------------------------
The impacts experienced by an establishment, measured by regulatory
costs and payroll increases incurred relative to its financial
resources (e.g., payroll or revenues), will increase as the share of
its workers that are affected increases.\302\ The most severe impacts
are most likely to be incurred by establishments in which all employees
are affected workers, regardless of establishment size. Therefore, to
estimate a lower-end estimate for the number of affected establishments
(which generates an upper-end estimate for impacts per establishment)
the Department assumes that all workers employed by an affected
establishment are affected.
---------------------------------------------------------------------------
\302\ Larger establishments are likely to have larger costs than
smaller firms since impacts (measured by the absolute dollar value
of costs and transfers) will increase as establishment size
increases; an establishment employing 50 affected workers will pay
greater costs and transfers than one employing 10 affected workers.
However, when measured as a percent of payroll and revenues, an
establishment with 10 affected employees out of 20 total employees
should experience fairly similar impacts as those experienced by an
establishment employing 50 affected workers out of 100 employees.
---------------------------------------------------------------------------
For the purposes of estimating this lower-range number of affected
small establishments, the Department used the average size of a small
establishment as the typical size of an affected small
establishment.\303\ The average number of employees in a small
establishment is the number of workers employed by small establishments
divided by the total number of small establishments in that industry
(SUSB 2012). Thus, the number of affected small establishments in an
industry, if all employees of an affected establishment are affected,
equals the number of affected small establishment employees divided by
the average number of employees per small establishment. Since SUSB
data provides no information on how affected workers are distributed
between these entities, the Department calculated an upper and a lower
bound of affected employees per small entity (which, in turn, is
associated with an lower and upper bound of the number of affected
small entities--and an upper and lower bound of impact per entity; the
fewer affected employees, the lower the cost per entity).
---------------------------------------------------------------------------
\303\ This is not the true lower bound estimate of the number of
affected establishments. Strictly speaking, a true lower bound
estimate of the number of affected small establishments would be
calculated by assuming all employees in the largest small
establishments are affected. For example, if the SBA standard is
that establishments with 500 employees are ``small,'' and 1,350
affected workers are employed by small establishments in that
industry, then the smallest number of establishments that could be
affected in that industry (the true lower bound) would be three.
However, because such an outcome appears implausible, the Department
determined a more reasonable lower estimate would be based on
average establishment size.
---------------------------------------------------------------------------
Table 38 summarizes the estimated number of affected workers
employed by small establishments and the expected range for the number
of affected small establishments by industry. The Department estimated
that the rule will affect 1.6 million workers who are employed by
somewhere between 210,800 and 1.6 million small establishments; this
composes from 3.5 percent to 25.9 percent of all small establishments.
It also means that from 4.5 million to 5.9 million small establishments
incur no more than minimal regulatory familiarization costs (i.e., 6.0
million minus 1.6 million equals 4.5 million; 6.0 million minus 210,000
equals 5.9 million, using rounded values). The table also presents the
average number of affected employees per establishment using the method
where all employees at the establishment are affected. For the other
method, by definition, there is always one affected employee per
establishment. Also displayed is the average payroll per small
establishment by industry (based on both affected and non-affected
small establishments), calculated by dividing total payroll of small
businesses (Table 37) by the number of small businesses (Table 37)
(applicable to both methods).
Table 39--Number of Small Affected Establishments and Employees by Industry and Employer Type
----------------------------------------------------------------------------------------------------------------
Number of establishments Per establishment
(1,000s) a -------------------------------
Affected --------------------------------
Industry workers One affected All employees Affected Average annual
(1,000s) employee per at estab. employees a payroll
estab. b affected c ($1,000s)
----------------------------------------------------------------------------------------------------------------
Total........................... 1,567.5 1,567.5 210.8 7.4 376.1
----------------------------------------------------------------------------------------------------------------
Industry
----------------------------------------------------------------------------------------------------------------
Agriculture..................... d d d d d
Forest., log., fish., hunt., and d d d d d
trap...........................
Mining.......................... 11.8 11.8 0.7 18.0 1,268.4
Construction.................... 83.1 83.1 11.2 7.4 361.5
[[Page 32535]]
Nonmetallic mineral prod. manuf. 3.9 3.9 0.2 16.4 808.4
Prim. metals and fab. metal prod 18.1 18.1 1.0 17.7 863.7
Machinery manufacturing......... 17.4 17.4 0.5 32.4 1,771.8
Computer and elect. prod. manuf. 22.1 22.1 0.4 50.8 3,800.1
Electrical equip., appliance d d d d d
manuf..........................
Transportation equip. manuf..... 14.0 14.0 0.2 58.9 3,337.6
Wood products................... 4.8 4.8 0.2 20.7 841.2
Furniture and fixtures manuf.... 5.6 5.6 0.3 17.3 669.8
Misc. and not spec. manuf....... 26.9 26.9 1.0 28.1 1,454.3
Food manufacturing.............. 13.1 13.1 0.4 33.9 1,245.8
Beverage and tobacco products... 2.8 2.8 0.1 30.5 1,570.2
Textile, app., and leather manuf 10.4 10.4 0.4 23.2 896.8
Paper and printing.............. 14.3 14.3 0.9 16.5 758.7
Petroleum and coal prod. manuf.. d d d d d
Chemical manufacturing.......... 12.7 12.7 0.3 51.0 3,244.6
Plastics and rubber products.... 6.5 6.5 0.3 22.2 1,000.2
Wholesale trade................. 62.1 62.1 13.2 4.7 246.5
Retail trade.................... 147.0 147.0 19.3 7.6 278.8
Transport. and warehousing...... 23.3 23.3 2.7 8.7 384.2
Utilities....................... 6.9 6.9 0.2 34.1 2,075.4
Publishing ind. (ex. internet).. 14.7 14.7 1.3 11.6 671.5
Motion picture and sound 9.1 9.1 1.7 5.5 299.1
recording......................
Broadcasting (except internet).. 8.2 8.2 0.3 24.2 1,363.6
Internet publishing and d d d d d
broadcasting...................
Telecommunications.............. 7.7 7.7 0.4 17.1 1,118.1
Internet serv. providers and d d d d d
data...........................
Other information services...... 4.0 4.0 0.2 24.3 979.4
Finance......................... 46.3 46.3 7.7 6.0 406.3
Insurance....................... 48.3 48.3 9.9 4.9 295.1
Real estate..................... 44.9 44.9 9.8 4.6 220.7
Rental and leasing services..... 5.1 5.1 1.3 4.1 162.2
Professional and technical 256.8 256.8 48.0 5.3 370.2
services.......................
Management of companies and 4.9 4.9 2.9 1.7 100.1
enterprises....................
Admin. and support services..... 49.7 49.7 7.1 7.0 236.5
Waste manag. and remed. services 5.9 5.9 0.5 11.8 529.8
Educational services............ 44.0 44.0 1.2 35.8 1,691.5
Hospitals....................... 13.2 13.2 0.1 214.7 12,069.1
Health care services, except 148.9 148.9 17.1 8.7 368.0
hospitals......................
Social assistance............... 91.5 91.5 7.8 11.8 373.2
Arts, entertainment, and 66.9 66.9 6.1 10.9 377.9
recreation.....................
Accommodation................... 11.5 11.5 1.1 10.4 348.2
Food services and drinking 26.1 26.1 5.3 4.9 113.9
places.........................
Repair and maintenance.......... 27.3 27.3 4.6 5.9 233.5
Personal and laundry services... 16.3 16.3 2.6 6.4 184.6
Membership associations & 84.5 84.5 17.2 4.9 219.8
organizations..................
Private households.............. d d d d d
Public administration e......... 16.5 16.5 1.7 9.5 489.0
----------------------------------------------------------------------------------------------------------------
Employer Type
----------------------------------------------------------------------------------------------------------------
Non-profit, private f........... 216.2 216.2 26.4 8.2 $360.20
For profit, private............. 1,306.80 1,306.80 165.7 7.9 $360.50
Government (state and local).... 44.5 44.5 1.3 33.8 $1,646.70
----------------------------------------------------------------------------------------------------------------
Note: Establishment data are from the Survey of U.S. Businesses 2012; worker and payroll data from CPS MORG
using pooled data for FY2013-FY2015 projected to reflect FY2017.
a Estimation of both affected small establishment employees and affected small establishments was done at the
most detailed industry level available. Therefore, the ratio of affected small establishment employees to
total small establishment employees for each industry may not match the ratio of small affected establishments
to total small establishments at more aggregated industry level presented in the table, nor will it equal the
ratio at the national level because relative industry size, employment, and small business employment differs
from industry to industry.
b This method may overestimate the number of affected establishments and therefore the ratio of affected workers
to affected establishments may be greater than 1-to-1. However, we addressed this issue by also calculating
impacts based on the assumption that 100 percent of workers at an establishment are affected.
c For example, on average, a small establishment in the construction industry employs 7.42 workers (4.70 million
employees divided by 634,330 small establishments). This method assumes if an establishment is affected then
all 7.42 workers are affected. Therefore, in the construction industry this method estimates there are 11,200
small affected establishments (83,100 affected small workers divided by 7.42).
[[Page 32536]]
d Data not displayed because sample size of affected workers in small establishments is less than 10.
e Establishment number represents the total number of state and local governments.
f As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed by
enterprises that do not meet the enterprise coverage requirements because there is no reliable way of
estimating this population. The estimates also do not exclude workers at non-covered enterprises who are not
individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers
generally, it may have a larger impact (and result in a larger overestimate) for workers in non-profits
because when determining enterprise coverage only revenue derived from business operations, not charitable
activities, are included.
v. Projected Impacts to Affected Small Entities
For small entities, the Department projected annual per-entity
costs and payroll increases, including: Regulatory familiarization
costs, adjustment costs, managerial costs, and payroll increases to
employees. The Department estimates a range for the number of small
affected establishments and the impacts they incur. However, few
establishments are likely to incur the costs, payroll increases, and
impacts at the upper end of this range because it seems unlikely that
all employees at a small firm are workers affected by this Final Rule.
While the upper and lower bounds are likely over- and under-estimates,
respectively, of regulatory costs and increased payroll per small
establishment, the Department believes that this range of costs and
payroll increases provides the most accurate characterization of the
impacts of the rule on small employers.\304\ Furthermore, the smaller
estimate of the number of affected establishments (i.e., where all
employees are assumed to be affected) will result in the largest costs
and payroll increases per entity as a percent of establishment payroll
and revenue, and the Department expects that many, if not most,
entities will incur smaller costs, payroll increases, and impacts
relative to establishment size.
---------------------------------------------------------------------------
\304\ As noted previously, these are not the true lower and
upper bounds. The values presented are the highest and lowest
estimates the Department believes are plausible.
---------------------------------------------------------------------------
As a result of this rule, the Department expects total direct
employer costs will range from $157.9 million to $206.8 million for
affected small establishments (Table 40) in the first year after the
promulgation of the Final Rule. An additional $162.3 million to $211.5
million in regulatory familiarization costs will be incurred by small
establishments that do not employ affected workers. The three
industries with the highest total number of affected workers in small
establishments (professional and technical services; healthcare
services, except hospitals; and retail trade) account for about 35
percent of the costs. The largest cost per establishment is expected to
be incurred in the hospitals industry ($20,629 using the method where
all employees are affected), although the costs are not expected to
exceed 0.17 percent of payroll. The largest impact as a share of
payroll is projected to be incurred in the food services and drinking
places industry, where estimated direct costs compose 0.45 percent of
average entity payroll.
Table 40--Year 1 Small Establishment Direct Costs, Total and Per Establishment, by Industry and Employer Type
----------------------------------------------------------------------------------------------------------------
Cost to small entities in year 1 \a\
-----------------------------------------------------------------------------
One affected employee All employees affected
Industry -----------------------------------------------------------------------------
Total Cost per Percent of Total Cost per Percent of
(millions) affected annual (millions) affected annual
\b\ entity payroll \b\ entity payroll
----------------------------------------------------------------------------------------------------------------
Total............................. $206.8 $132 0.04 $157.9 $749 0.20
----------------------------------------------------------------------------------------------------------------
Industry
----------------------------------------------------------------------------------------------------------------
Agriculture....................... \c\ \c\ \c\ \c\ \c\ \c\
Forest., log., fish., hunt., and \c\ \c\ \c\ \c\ \c\ \c\
trap.............................
Mining............................ $1.6 $132 0.01 $1.2 $1,765 0.14
Construction...................... 11.0 132 0.04 8.4 748 0.21
Nonmetallic mineral prod. manuf... 0.5 132 0.02 0.4 1,613 0.20
Prim. metals and fab. metal prod.. 2.4 132 0.02 1.8 1,734 0.20
Machinery manufacturing........... 2.3 132 0.01 1.7 3,145 0.18
Computer and elect. prod. manuf... 2.9 132 0.00 2.1 4,905 0.13
Electrical equip., appliance manuf \c\ \c\ \c\ \c\ \c\ \c\
Transportation equip. manuf....... 1.8 132 0.00 1.3 5,690 0.17
Wood products..................... 0.6 132 0.02 0.5 2,023 0.24
Furniture and fixtures manuf...... 0.7 132 0.02 0.5 1,696 0.25
Misc. and not spec. manuf......... 3.6 132 0.01 2.6 2,734 0.19
Food manufacturing................ 1.7 132 0.01 1.3 3,287 0.26
Beverage and tobacco products..... 0.4 132 0.01 0.3 2,963 0.19
Textile, app., and leather manuf.. 1.4 132 0.01 1.0 2,265 0.25
Paper and printing................ 1.9 132 0.02 1.4 1,618 0.21
Petroleum and coal prod. manuf.... \c\ \c\ \c\ \c\ \c\ \c\
Chemical manufacturing............ 1.7 132 0.00 1.2 4,923 0.15
Plastics and rubber products...... 0.9 132 0.01 0.6 2,168 0.22
Wholesale trade................... 8.2 132 0.05 6.4 487 0.20
Retail trade...................... 19.4 132 0.05 14.8 767 0.28
Transport. and warehousing........ 3.1 132 0.03 2.3 869 0.23
Utilities......................... 0.9 132 0.01 0.7 3,308 0.16
[[Page 32537]]
Publishing ind. (ex. internet).... 1.9 132 0.02 1.5 1,152 0.17
Motion picture and sound recording 1.2 132 0.04 0.9 564 0.19
Broadcasting (except internet).... 1.1 132 0.01 0.8 2,352 0.17
Internet publishing and \c\ \c\ \c\ \c\ \c\ \c\
broadcasting.....................
Telecommunications................ 1.0 132 0.01 0.7 1,673 0.15
Internet serv. providers and data. \c\ \c\ \c\ \c\ \c\ \c\
Other information services........ 0.5 132 0.01 0.4 2,363 0.24
Finance........................... 6.1 132 0.03 4.7 611 0.15
Insurance......................... 6.4 132 0.04 5.0 503 0.17
Real estate....................... 5.9 132 0.06 4.7 475 0.22
Rental and leasing services....... 0.7 132 0.08 0.5 428 0.26
Professional and technical 33.9 132 0.04 26.4 549 0.15
services.........................
Management of companies and 0.6 132 0.13 0.6 200 0.20
enterprises......................
Admin. and support services....... 6.6 132 0.06 5.0 711 0.30
Waste manag. and remed. services.. 0.8 132 0.02 0.6 1,167 0.22
Educational services.............. 5.8 132 0.01 4.3 3,471 0.21
Hospitals......................... 1.8 132 0.00 1.3 20,629 0.17
Health care services, except 19.7 132 0.04 14.9 872 0.24
hospitals........................
Social assistance................. 12.1 132 0.04 9.1 1,166 0.31
Arts, entertainment, and 8.8 132 0.03 6.6 1,082 0.29
recreation.......................
Accommodation..................... 1.5 132 0.04 1.1 1,032 0.30
Food services and drinking places. 3.4 132 0.12 2.7 508 0.45
Repair and maintenance............ 3.6 132 0.06 2.8 607 0.26
Personal and laundry services..... 2.2 132 0.07 1.7 647 0.35
Membership associations & 11.2 132 0.06 8.7 508 0.23
organizations....................
Private households................ \c\ \c\ \c\ \c\ \c\ \c\
Public administration............. 2.2 132 0.03 1.6 945 0.19
----------------------------------------------------------------------------------------------------------------
Employer Type
----------------------------------------------------------------------------------------------------------------
Non-profit, private \d\........... 28.70 133 0.04 21.80 824 0.23
For profit, private............... 177.40 136 0.04 136.10 821 0.23
Government (state and local)...... 5.20 116 0.01 3.60 2,723 0.17
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Direct costs include regulatory familiarization, adjustment, and managerial costs.
\b\ The range of costs per establishment depends on the number of affected establishments. The minimum assumes
that each affected establishment has one affected worker (therefore, the number of affected establishments is
equal to the number of affected workers). The maximum assumes the share of workers in small entities who are
affected is also the share of small entity establishments that are affected.
\c\ Data not displayed because sample size of affected workers in small establishments is less than 10.
\d\ As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed
by enterprises that do not meet the enterprise coverage requirements because there is no reliable way of
estimating this population. The estimates also do not exclude workers at non-covered enterprises who are not
individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers
generally, it may have a larger impact (and result in a larger overestimate) for workers in non-profits
because when determining enterprise coverage only revenue derived from business operations, not charitable
activities, are included.
Average weekly earnings for affected EAP workers in small
establishments are expected to increase by about $6.51 per week per
affected worker, using the partial employment contract model \305\
described in section VI.D.iv.\306\ This would lead to $530.4 million in
additional annual wage payments to employees in small entities (less
than 0.7 percent of aggregate affected establishment payroll; Table
40). The largest payroll increases per establishment are expected in
the sectors of hospitals (up to $54,430 per entity); food manufacturing
(up to $26,158 per entity); and transportation equipment manufacturing
(up to $20,666 per entity). However, average payroll increases per
establishment exceed 2 percent of average payroll in only two sectors:
food services and drinking places (3.53 percent) and food manufacturing
(2.10 percent).
---------------------------------------------------------------------------
\305\ As explained in section VI.D.iv., the partial employment
contract model reflects the Department's determination that an
appropriate estimate of the impact on the implicit hourly rate of
pay for regular overtime workers after the Final Rule should be
determined using the average of Barkume's two estimates of partial
employment contract model adjustments: a wage change that is 40
percent of the adjustment toward the amount predicted by the
employment contract model, assuming an initial zero overtime pay
premium, and a wage change that is 80 percent of the adjustment
assuming an initial 28 percent overtime pay premium.
\306\ This is an average increase for all affected workers (both
EAP and HCE), and reconciles to the weighted average of individual
salary changes discussed in the Transfers section.
[[Page 32538]]
Table 41--Year 1 Small Establishment Payroll Increases, Total and per Establishment, by Industry and Employer
Type
----------------------------------------------------------------------------------------------------------------
Increased payroll for small entities in year 1 \a\
-------------------------------------------------------------------------------
One affected employee All employees affected
Industry Total ---------------------------------------------------------------
(millions) Per Percent of Per Percent of
establishment annual payroll establishment annual payroll
----------------------------------------------------------------------------------------------------------------
Total........................... $530.4 $338 0.09 $2,516 0.67
----------------------------------------------------------------------------------------------------------------
Industry
----------------------------------------------------------------------------------------------------------------
Agriculture..................... \b\ \b\ \b\ \b\ \b\
Forest., log., fish., hunt., and \b\ \b\ \b\ \b\ \b\
trap...........................
Mining.......................... 6.0 509 0.04 9,184 0.72
Construction.................... 35.9 433 0.12 3,209 0.89
Nonmetallic mineral prod. manuf. 0.8 193 0.02 3,176 0.39
Prim. metals and fab. metal prod 3.0 163 0.02 2,893 0.33
Machinery manufacturing......... 4.1 238 0.01 7,704 0.43
Computer and elect. prod. manuf. 8.6 390 0.01 19,810 0.52
Electrical equip., appliance \b\ \b\ \b\ \b\ \b\
manuf..........................
Transportation equip. manuf..... 4.9 351 0.01 20,666 0.62
Wood products................... 3.0 639 0.08 13,238 1.57
Furniture and fixtures manuf.... 0.5 95 0.01 1,638 0.24
Misc. and not spec. manuf....... 12.8 477 0.03 13,420 0.92
Food manufacturing.............. 10.1 772 0.06 26,158 2.10
Beverage and tobacco products... 0.7 238 0.02 7,263 0.46
Textile, app., and leather manuf 2.9 283 0.03 6,565 0.73
Paper and printing.............. 6.9 478 0.06 7,883 1.04
Petroleum and coal prod. manuf.. \b\ \b\ \b\ \b\ \b\
Chemical manufacturing.......... 2.7 208 0.01 10,599 0.33
Plastics and rubber products.... 2.2 338 0.03 7,518 0.75
Wholesale trade................. 22.2 357 0.14 1,677 0.68
Retail trade.................... 67.4 458 0.16 3,492 1.25
Transport. and warehousing...... 8.9 382 0.10 3,314 0.86
Utilities....................... 0.4 62 0.00 2,103 0.10
Publishing ind. (ex. internet).. 3.1 212 0.03 2,466 0.37
Motion picture and sound 6.6 724 0.24 3,979 1.33
recording......................
Broadcasting (except internet).. 2.6 312 0.02 7,540 0.55
Internet publishing and \b\ \b\ \b\ \b\ \b\
broadcasting...................
Telecommunications.............. 0.9 112 0.01 1,917 0.17
Internet serv. providers and \b\ \b\ \b\ \b\ \b\
data...........................
Other information services...... 1.1 270 0.03 6,541 0.67
Finance......................... 22.6 488 0.12 2,922 0.72
Insurance....................... 7.0 145 0.05 708 0.24
Real estate..................... 17.1 382 0.17 1,746 0.79
Rental and leasing services..... 1.0 197 0.12 806 0.50
Professional and technical 62.7 244 0.07 1,304 0.35
services.......................
Management of companies and 1.9 378 0.38 647 0.65
enterprises....................
Admin. and support services..... 15.9 319 0.13 2,246 0.95
Waste manag. and remed. services 1.5 252 0.05 2,970 0.56
Educational services............ 7.4 168 0.01 6,019 0.36
Hospitals....................... 3.4 253 0.00 54,430 0.45
Health care services, except 26.3 176 0.05 1,536 0.42
hospitals......................
Social assistance............... 19.2 210 0.06 2,473 0.66
Arts, entertainment, and 35.0 522 0.14 5,697 1.51
recreation.....................
Accommodation................... 5.7 492 0.14 5,115 1.47
Food services and drinking 21.3 817 0.72 4,019 3.53
places.........................
Repair and maintenance.......... 21.2 776 0.33 4,612 1.98
Personal and laundry services... 6.6 404 0.22 2,571 1.39
Membership associations & 30.2 357 0.16 1,757 0.80
organizations..................
Private households.............. \b\ \b\ \b\ \b\ \b\
Public administration........... 5.1 310 0.06 2,936 0.60
----------------------------------------------------------------------------------------------------------------
Employer Type
----------------------------------------------------------------------------------------------------------------
Non-profit, private \c\......... 72.60 336 0.19 2,745 0.76
For profit, private............. 449.20 344 0.02 2,711 0.75
Government (state and local).... 8.60 194 0.16 6,541 0.40
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Aggregate change in total annual payroll experienced by small entities under the updated salary levels after
labor market adjustments. This amount represents the total amount of (wage) transfers from employers to
employees.
\b\ Data not displayed because sample size of affected workers in small establishments is less than 10.
\c\ As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed
by enterprises that do not meet the enterprise coverage requirements because there is no reliable way of
estimating this population. The estimates also do not exclude workers at non-covered enterprises who are not
individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers
generally, it may have a larger impact (and result in a larger overestimate) for workers in non-profits
because when determining enterprise coverage only revenue derived from business operations, not charitable
activities, are included.
[[Page 32539]]
Table 42 presents estimated first year direct costs and payroll
increases combined per establishment and those costs and payroll
increases as a percent of average establishment payroll. The Department
presents only the results for the upper bound scenario where all
workers employed by the establishment are affected. Under this
scenario, an affected small establishment is expected to incur between
$200 and $20,629 in direct costs (Table 40) and between $647 and
$54,430 in additional payroll to employees (Table 41) in the first year
after the promulgation of the Final Rule. Combined costs and payroll
increases per establishment range from $847 in management of companies
and enterprises to $75,059 in the hospitals sector (Table 41).\307\
Combined costs and payroll increases compose more than 2 percent of
average establishment payroll in three sectors: Food services and
drinking places (3.97 percent), food manufacturing (2.36 percent), and
repair and maintenance (2.24 percent). In all other sectors, they range
from 0.3 percent to 1.8 percent of payroll.
---------------------------------------------------------------------------
\307\ When a single affected worker is employed, combined costs
and transfers by industry are projected to range from $194 (in
utilities) to $949 (in food services and drinking places) per
establishment.
---------------------------------------------------------------------------
However, comparing costs and payroll increases to payrolls
overstates the impact to establishments because payroll represents only
a fraction of the financial resources available to an establishment.
The Department approximated revenue per small affected establishment by
calculating the ratio of small business revenues to payroll by industry
from the 2012 SUSB data then multiplying that ratio by average small
entity payroll.\308\ Using this approximation of annual revenues as a
benchmark, only one sector has costs and payroll increases amounting to
more than one percent of revenues, food services and drinking places
(1.08 percent).
---------------------------------------------------------------------------
\308\ The ratio of revenues to payroll for small businesses
ranged from 2.14 (social assistance) to 43.69 (petroleum and coal
products manufacturing), with an average over all sectors of 5.15.
The Department used this estimate of revenue, instead of small
business revenue reported directly from the 2012 SUSB so revenue
aligned with projected payrolls in FY2017.
Table 42--Year 1 Small Establishment Direct Costs and Payroll Increases, Total and per Establishment, by
Industry and Employer Type, Using All Employees in Establishment Affected Method
----------------------------------------------------------------------------------------------------------------
Costs and payroll increases for small affected establishments,
all employees affected
---------------------------------------------------------------
Industry Percent of
Total Per estab. \a\ Percent of estimated
(millions) annual payroll revenues \b\
----------------------------------------------------------------------------------------------------------------
Total........................................... $688.3 $3,265 0.87 0.17
----------------------------------------------------------------------------------------------------------------
Industry
----------------------------------------------------------------------------------------------------------------
Agriculture..................................... \c\ \c\ \c\ \c\
Forest., log., fish., hunt., and trap........... \c\ \c\ \c\ \c\
Mining.......................................... $7.2 $10,950 0.86 0.13
Construction.................................... 44.3 3,956 1.09 0.24
Nonmetallic mineral prod. manuf................. 1.1 4,790 0.59 0.11
Prim. metals and fab. metal prod................ 4.7 4,627 0.54 0.12
Machinery manufacturing......................... 5.8 10,849 0.61 0.13
Computer and elect. prod. manuf................. 10.8 24,715 0.65 0.15
Electrical equip., appliance manuf.............. \c\ \c\ \c\ \c\
Transportation equip. manuf..................... 6.3 26,356 0.79 0.13
Wood products................................... 3.5 15,261 1.81 0.31
Furniture and fixtures manuf.................... 1.1 3,334 0.50 0.12
Misc. and not spec. manuf....................... 15.5 16,154 1.11 0.28
Food manufacturing.............................. 11.4 29,445 2.36 0.22
Beverage and tobacco products................... 1.0 10,227 0.65 0.08
Textile, app., and leather manuf................ 4.0 8,829 0.98 0.16
Paper and printing.............................. 8.3 9,501 1.25 0.28
Petroleum and coal prod. manuf.................. \c\ \c\ \c\ \c\
Chemical manufacturing.......................... 3.9 15,522 0.48 0.04
Plastics and rubber products.................... 2.8 9,685 0.97 0.15
Wholesale trade................................. 28.6 2,163 0.88 0.06
Retail trade.................................... 82.2 4,260 1.53 0.15
Transport. and warehousing...................... 11.2 4,183 1.09 0.25
Utilities....................................... 1.1 5,411 0.26 0.02
Publishing ind. (ex. internet).................. 4.6 3,618 0.54 0.19
Motion picture and sound recording.............. 7.5 4,543 1.52 0.40
Broadcasting (except internet).................. 3.4 9,892 0.73 0.26
Internet publishing and broadcasting............ \c\ \c\ \c\ \c\
Telecommunications.............................. 1.6 3,591 0.32 0.05
Internet serv. providers and data............... \c\ \c\ \c\ \c\
Other information services...................... 1.5 8,905 0.91 0.36
Finance......................................... 27.3 3,533 0.87 0.31
Insurance....................................... 12.0 1,211 0.41 0.09
Real estate..................................... 21.8 2,220 1.01 0.22
Rental and leasing services..................... 1.6 1,234 0.76 0.19
Professional and technical services............. 89.0 1,853 0.50 0.20
Management of companies and enterprises......... 2.4 847 0.85 0.17
Admin. and support services..................... 20.9 2,957 1.25 0.56
[[Page 32540]]
Waste manag. and remed. services................ 2.1 4,137 0.78 0.20
Educational services............................ 11.6 9,489 0.56 0.22
Hospitals....................................... 4.6 75,059 0.62 0.27
Health care services, except hospitals.......... 41.2 2,408 0.65 0.28
Social assistance............................... 28.3 3,639 0.98 0.45
Arts, entertainment, and recreation............. 41.6 6,779 1.79 0.59
Accommodation................................... 6.8 6,148 1.77 0.44
Food services and drinking places............... 24.0 4,527 3.97 1.08
Repair and maintenance.......................... 23.9 5,219 2.24 0.63
Personal and laundry services................... 8.2 3,218 1.74 0.60
Membership associations & organizations......... 38.9 2,266 1.03 0.26
Private households.............................. \c\ \c\ \c\ \c\
Public administration........................... 6.8 3,881 0.79 0.22
----------------------------------------------------------------------------------------------------------------
Employer Type
----------------------------------------------------------------------------------------------------------------
Non-profit, private \d\......................... 94.40 3,570 1.00 0.30
For profit, private............................. 585.30 3,532 1.00 0.20
Government (state and local).................... 12.20 9,264 0.60 0.20
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Total direct costs and transfers for small establishments in which all employees are affected. Impacts to
small establishments in which one employee is affected will be a fraction of the impacts presented in this
table.
\b\ Revenues estimated by calculating the ratio of estimated small business revenues to payroll from the 2012
SUSB, and multiplying by payroll per small entity. For the public administration sector, the ratio was
calculated using revenues and payroll from the 2012 Census of Governments.
\c\ Data not displayed because sample size of affected workers in small establishments is less than 10.
\d\ As discussed in section VI.B.iii, estimates of workers subject to the FLSA do not exclude workers employed
by enterprises that do not meet the enterprise coverage requirements because there is no reliable way of
estimating this population. The estimates also do not exclude workers at non-covered enterprises who are not
individually covered (because the estimates assume all workers are employed by covered entities). Although not
excluding workers who work for non-covered enterprises would only impact a small percentage of workers
generally, it may have a larger impact (and result in a larger overestimate) for workers in non-profits
because when determining enterprise coverage only revenue derived from business operations, not charitable
activities, are included.
The Department also considered costs and payroll increases relative
to profits (Table 43). The denominator is all profits in an industry,
rather than profits per affected establishment. In Table 42 we compared
costs and payroll increases to payroll and revenue per establishment;
therefore, the numbers in Table 42 and Table 43 are not directly
comparable. The broader denominator was used for the profit analysis to
be consistent with the profit analysis conducted for the 2004 Final
Rule. Due to the broader denominator, total costs and payroll increases
in this table include regulatory familiarization costs to non-affected
small establishments. Additionally, this table differs from Table 42
because it is conducted at the more aggregated 13 major industry level.
This is due to data limitations in the profit data.309 310
---------------------------------------------------------------------------
\309\ Internal Revenue Service. (2012). Corporation Income Tax
Returns. Available at: https://www.irs.gov/pub/irs-soi/12coccr.pdf.
\310\ Table 5 of the IRS report provides information on total
receipts and net income (less deficits) by size of business
receipts, but is only available at a 2-digit NAICS level. The
Department used the small business share of total revenues by
industry from the 2012 SUSB data to approximate the appropriate
business receipt sizes to include in the calculation of the profit
ratio from the IRS data. The Department calculated the profit ratio
as net income (less deficits) to receipts for small businesses in
each industry. This ratio was then applied to revenue data to
estimate profits.
---------------------------------------------------------------------------
Benchmarking against profit is potentially helpful in the sense
that it provides a measure of the Final Rule's effect against returns
to investment and possible adjustments arising from changes in that
outcome. However, this metric must be interpreted carefully as it does
not account for differences across industries in terms of risk-adjusted
rates of return, nor does it reflect differences in the firm-level
adjustment to profit impacts reflecting cross-industry variation in
market structure. Costs and payroll increases as a percent of profits
are highest in leisure and hospitality industry (although the
information industry may be more affected because profits are
negative). However, the magnitude of the relative shares is small,
representing less than 0.8 percent of profits in each industry and 0.14
percent in aggregate. Similarly, costs and payroll increases as a
percent of either payroll or revenue are highest in the leisure and
hospitality industry.
[[Page 32541]]
Table 43--Year 1 Small Establishment Direct Costs and Payroll Increases, by Industry
----------------------------------------------------------------------------------------------------------------
Costs and payroll increases for all small establishments
---------------------------------------------------------------
Industry Percent of
Total Percent of estimated Percent of
(millions) \a\ annual payroll revenues \b\ profits \c\
----------------------------------------------------------------------------------------------------------------
Total........................................... 899.9 0.04 0.01 0.14
----------------------------------------------------------------------------------------------------------------
Industry
----------------------------------------------------------------------------------------------------------------
Agriculture, forestry, fishing, & hunting....... $1.4 0.01 0.00 0.02
Mining.......................................... 8.0 0.03 0.00 0.17
Construction.................................... 66.9 0.03 0.01 0.19
Manufacturing................................... 89.7 0.02 0.00 0.09
Wholesale & retail trade........................ 146.5 0.05 0.00 0.20
Transportation & utilities...................... 18.7 0.02 0.00 0.16
Information..................................... 22.6 0.05 0.01 \d\
Financial activities............................ 80.8 0.05 0.01 0.06
Professional & business services................ 153.6 0.04 0.02 0.25
Education & health services..................... 112.5 0.03 0.01 0.11
Leisure & hospitality........................... 95.1 0.08 0.02 0.75
Other services.................................. 94.8 0.07 0.02 0.48
Public administration........................... 9.4 0.03 0.01 \e\
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017.
\a\ Total costs and payroll increases include regulatory familiarization costs to non-affected small
establishments.
\b\ Revenues estimated by calculating the ratio of estimated small business revenues to payroll from the 2012
SUSB, and multiplying by payroll per small entity. For the public administration sector, the ratio was
calculated using revenues and payroll from the 2012 Census of Governments.
\c\ Profit data based on corporations only. IRS data disaggregates net income data by business receipt size.
Because the SBA standards for small businesses in some industries are based on number of employees, the
Department had to estimate which receipt size categories to consider as small businesses.
\d\ Profits in this industry were negative in the 2012 Corporation Income Tax Returns, Statistics of Income,
IRS.
\e\ Profit is not applicable for public administration.
vi. Projected Impacts to Affected Small Entities in Year 2 Through Year
10
To determine how small businesses will be affected in future years,
the Department projected costs to small business for nine years after
Year 1 of the rule. Projected employment and earnings were calculated
using the same methodology described in Section VI.B.ii. Affected
employees in small firms follow a similar pattern to affected workers
in all establishments. The number decreases gradually in years without
automatic updates, but the increases in years with automatic updates
offset this fall and result in a net growth over time. There are 1.6
million affected workers in small establishments in Year 1 and 2.0
million in Year 10. Table 44 reports affected workers only in years
when the salary level increases.
Table 44--Projected Number of Affected Workers in Small Establishments, by Industry
----------------------------------------------------------------------------------------------------------------
Affected workers in small establishments (1,000s)
Industry ---------------------------------------------------------------
Year 1 Year 4 Year 7 Year 10
----------------------------------------------------------------------------------------------------------------
Total........................................... 1,567.5 1,711.1 1,838.2 1,955.3
Agriculture..................................... \a\ \a\ \a\ 2.4
Forest., log., fish., hunt., and trap........... \a\ \a\ \a\ \a\
Mining.......................................... 11.8 14.0 14.8 16.2
Construction.................................... 83.1 90.2 98.3 106.1
Nonmetallic mineral prod. manuf................. 3.9 4.8 4.7 5.5
Prim. metals and fab. metal prod................ 18.1 18.9 18.6 19.4
Machinery manufacturing......................... 17.4 17.7 17.8 17.1
Computer and elect. prod. manuf................. 22.1 21.7 22.2 22.3
Electrical equip., appliance manuf.............. \a\ \a\ \a\ \a\
Transportation equip. manuf..................... 14.0 14.2 14.1 13.7
Wood products................................... 4.8 4.8 4.7 4.8
Furniture and fixtures manuf.................... 5.6 5.4 5.4 5.2
Misc. and not spec. manuf....................... 26.9 27.7 28.8 28.5
Food manufacturing.............................. 13.1 16.0 17.6 17.5
Beverage and tobacco products................... 2.8 2.8 3.5 3.4
Textile, app., and leather manuf................ 10.4 11.6 11.6 11.8
Paper and printing.............................. 14.3 15.5 16.6 17.1
Petroleum and coal prod. manuf.................. \a\ \a\ \a\ \a\
Chemical manufacturing.......................... 12.7 13.8 14.9 16.7
Plastics and rubber products.................... 6.5 6.6 6.1 6.0
Wholesale trade................................. 62.1 69.5 72.5 77.0
Retail trade.................................... 147.0 161.3 174.9 186.5
Transport. and warehousing...................... 23.3 24.9 28.9 32.2
[[Page 32542]]
Utilities....................................... 6.9 6.7 7.4 7.3
Publishing ind. (ex. internet).................. 14.7 15.2 17.4 17.7
Motion picture and sound recording.............. 9.1 9.5 10.4 10.5
Broadcasting (except internet).................. 8.2 8.8 10.1 11.0
Internet publishing and broadcasting............ \a\ \a\ \a\ \a\
Telecommunications.............................. 7.7 8.1 8.7 8.8
Internet serv. providers and data............... \a\ \a\ 3.1 3.2
Other information services...................... 4.0 4.0 4.4 4.4
Finance......................................... 46.3 49.2 51.5 53.9
Insurance....................................... 48.3 50.9 56.4 59.5
Real estate..................................... 44.9 50.1 56.2 61.4
Rental and leasing services..................... 5.1 5.6 5.7 5.8
Professional and technical services............. 256.8 278.6 296.8 314.0
Management of companies and enterprises......... 4.9 5.4 6.9 7.5
Admin. and support services..................... 49.7 56.0 60.5 65.1
Waste manag. and remed. services................ 5.9 7.6 9.5 10.1
Educational services............................ 44.0 46.9 51.2 56.0
Hospitals....................................... 13.2 15.4 15.8 17.2
Health care services, except hospitals.......... 148.9 165.9 182.4 199.0
Social assistance............................... 91.5 105.8 115.4 123.3
Arts, entertainment, and recreation............. 66.9 71.4 75.6 82.8
Accommodation................................... 11.5 12.5 12.9 14.6
Food services and drinking places............... 26.1 29.1 31.5 33.1
Repair and maintenance.......................... 27.3 29.9 31.1 33.4
Personal and laundry services................... 16.3 17.4 19.4 20.2
Membership associations and organizations....... 84.5 93.2 96.6 101.8
Private households.............................. \a\ \a\ \a\ \a\
Public administration........................... 16.5 17.8 18.4 19.4
----------------------------------------------------------------------------------------------------------------
Note: Worker data are from CPS MORG using pooled data for FY2013-FY2015 projected to reflect FY2017 in Year 1.
\a\ Data not displayed because sample size of affected workers in small establishments is less than 10.
Costs to small establishments decrease in the years following Year
1 because regulatory familiarization costs are zero in years without
automatic updates, and adjustment costs are significantly smaller in
years without automatic updating. However, both direct costs and
payroll increase over time as more workers become affected, leading to
higher managerial costs and earnings for affected workers. Therefore,
by Year 10 additional costs and payroll to small businesses have
increased from $688.3 in Year 1 to $901.8 in Year 10 (Table 45).
Despite this increase over the 10-year period, even in Year 10 costs
and payroll increases are a relatively negligible 0.04 percent and 0.01
percent share of payroll and revenue respectively, assuming no growth
in real firm payroll or revenues. The Department notes that due to
relatively small sample sizes the estimates by detailed industry are
not precise. This can cause some numbers in the data to vary across
years by a greater amount than they will in the future.
Table 45--Projected Small Establishment Direct Costs and Payroll Increases, by Industry, Using All Employees in
Establishment Affected Method
----------------------------------------------------------------------------------------------------------------
Costs and payroll increases for all small affected
establishments, all employees affected (millions)
Industry ---------------------------------------------------------------
Year 1 Year 4 Year 7 Year 10
----------------------------------------------------------------------------------------------------------------
Total........................................... 688.3 629.3 749.3 901.8
Agriculture..................................... a a a 3.9
Forest., log., fish., hunt., and trap........... a a a a
Mining.......................................... 7.2 12.8 15.0 17.6
Construction.................................... 44.3 34.5 44.3 51.9
Nonmetallic mineral prod. manuf................. 1.1 1.5 1.7 2.8
Prim. metals and fab. metal prod................ 4.7 4.3 4.3 5.1
Machinery manufacturing......................... 5.8 4.3 4.4 4.4
Computer and elect. prod. manuf................. 10.8 14.8 18.0 21.1
Electrical equip., appliance manuf.............. a a a a
Transportation equip. manuf..................... 6.3 6.3 6.2 6.1
Wood products................................... 3.5 5.7 5.9 6.4
Furniture and fixtures manuf.................... 1.1 0.7 0.7 0.7
Misc. and not spec. manuf....................... 15.5 13.0 15.1 16.1
Food manufacturing.............................. 11.4 10.2 12.1 13.5
Beverage and tobacco products................... 1.0 0.6 1.6 1.6
[[Page 32543]]
Textile, app., and leather manuf................ 4.0 3.3 4.8 5.0
Paper and printing.............................. 8.3 7.4 9.1 14.7
Petroleum and coal prod. manuf.................. a a a a
Chemical manufacturing.......................... 3.9 3.8 3.9 5.3
Plastics and rubber products.................... 2.8 2.5 3.0 3.3
Wholesale trade................................. 28.6 28.1 34.1 43.8
Retail trade.................................... 82.2 76.7 99.1 125.1
Transport. and warehousing...................... 11.2 8.7 10.5 14.5
Utilities....................................... 1.1 0.7 0.7 0.9
Publishing ind. (ex. internet).................. 4.6 5.4 5.8 6.4
Motion picture and sound recording.............. 7.5 6.9 7.4 7.8
Broadcasting (except internet).................. 3.4 3.4 4.0 4.3
Internet publishing and broadcasting............ a a a a
Telecommunications.............................. 1.6 1.1 1.2 1.4
Internet serv. providers and data............... \a\ \a\ 0.9 1.0
Other information services...................... 1.5 1.0 1.9 1.1
Finance......................................... 27.3 28.5 31.8 34.9
Insurance....................................... 12.0 9.4 10.6 11.4
Real estate..................................... 21.8 16.0 20.0 21.9
Rental and leasing services..................... 1.6 1.9 1.9 1.9
Professional and technical services............. 89.0 81.7 92.2 114.0
Management of companies and enterprises......... 2.4 1.9 2.0 2.2
Admin. and support services..................... 20.9 20.1 27.8 35.3
Waste manag. and remed. services................ 2.1 5.9 5.8 9.1
Educational services............................ 11.6 9.1 10.6 13.1
Hospitals....................................... 4.6 4.3 5.2 5.8
Health care services, except hospitals.......... 41.2 34.0 38.9 46.8
Social assistance............................... 28.3 22.6 24.9 28.3
Arts, entertainment, and recreation............. 41.6 36.9 41.5 47.6
Accommodation................................... 6.8 8.3 11.8 17.4
Food services and drinking places............... 24.0 21.4 27.6 33.0
Repair and maintenance.......................... 23.9 21.3 24.3 28.6
Personal and laundry services................... 8.2 7.1 8.3 8.8
Membership associations and organizations....... 38.9 33.3 39.9 46.7
Private households.............................. a a a a
Public administration........................... 6.8 6.1 6.4 8.6
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017 in Year 1.
a Data not displayed because sample size of affected workers in small establishments is less than 10.
The Department projected costs and payroll increases per affected
small establishment using the range for the estimated number of
affected small establishments. Table 46 shows projected costs and
payroll increases in Years 1, 4, 7, and 10 for the ten industries with
the highest costs and payroll increases in Year 1. Affected small
establishments in the hospitals industry have the largest costs and
payroll increases per establishment using the scenario where all
workers employed by the establishment are affected. Using the scenario
where one worker per establishment is affected, the costs and payroll
increases per establishment are highest in Year 1 in the food services
and drinking places industry.
Table 46--Projected Direct Costs and Payroll Increases per Small Establishment
----------------------------------------------------------------------------------------------------------------
Costs and payroll increases per affected small establishments
for ten industries with highest costs \a\
Industry ---------------------------------------------------------------
Year 1 Year 4 Year 7 Year 10
----------------------------------------------------------------------------------------------------------------
All Employees Affected at Small Establishment Affected
----------------------------------------------------------------------------------------------------------------
Hospitals....................................... $75,059 $69,034 $85,024 $93,262
Food manufacturing.............................. 29,445 26,410 31,303 34,962
Transportation equip. manuf..................... 26,356 26,656 26,229 25,653
Computer and elect. prod. manuf................. 24,715 33,947 41,226 48,334
Misc. and not spec. manuf....................... 16,154 13,550 15,740 16,794
Chemical manufacturing.......................... 15,522 15,271 15,543 21,268
Wood products................................... 15,261 24,826 25,695 27,934
Mining.......................................... 10,950 19,532 22,967 26,945
Machinery manufacturing......................... 10,849 7,921 8,162 8,231
[[Page 32544]]
Beverage and tobacco products................... 10,227 6,770 17,102 17,514
----------------------------------------------------------------------------------------------------------------
One Employee Affected at Each Small Establishment Affected
----------------------------------------------------------------------------------------------------------------
Food services and drinking places............... 949 822 1,059 1,267
Repair and maintenance.......................... 908 783 894 1,051
Food manufacturing.............................. 904 782 927 1,035
Motion picture and sound recording.............. 856 758 814 858
Wood products................................... 771 1,201 1,243 1,351
Arts, entertainment, and recreation............. 654 553 623 714
Mining.......................................... 642 1,086 1,277 1,497
Accommodation................................... 625 721 1,028 1,517
Finance......................................... 620 619 690 757
Paper and printing.............................. 610 519 638 1,025
----------------------------------------------------------------------------------------------------------------
Note: Pooled data for FY2013-FY2015 projected to reflect FY2017 in Year 1.
a Assuming no growth in number of establishments. Highest cost is based on cost in Year 1.
E. Description of the Compliance Requirements for Small Entities
The FLSA sets minimum wage, overtime pay, and recordkeeping
requirements for employment subject to its provisions. Unless exempt,
covered employees must be paid at least the minimum wage for all hours
worked and not less than one and one-half times their regular rates of
pay for overtime hours worked. Every employer with covered employees
must keep certain records for each nonexempt worker. The regulations at
part 516 require employers to maintain records for employees subject to
the minimum wage and overtime pay provisions of the FLSA. Thus, the
recordkeeping requirements are not new requirements; however, employers
would need to keep some additional records for additional affected
employees (i.e., newly nonexempt workers). As indicated in this
analysis, the Final Rule would expand minimum wage and overtime pay
coverage to approximately 4.1 million affected EAP workers (excluding
Type 4 workers who remain exempt) (section VI.D.vii.). This would
result in an increase in employer burden and was estimated in the PRA
portion (section V) of this Final Rule. Note that the burdens reported
for the PRA section of this Final Rule include the entire information
collection and not merely the additional burden estimated as a result
of this Final Rule.
F. Steps the Agency Has Taken To Minimize the Significant Economic
Impact on Small Entities
This section discusses the description of the steps the agency has
taken to minimize the significant economic impact on small entities,
consistent with the stated objectives of the FLSA. It includes a
statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the Final Rule and why other alternatives were
rejected.
After considering the comments, the Department has made several
changes from the proposed rule to the Final Rule. In particular, the
Department has modified the standard salary level to more fully account
for the salaries paid in low wage regions. In this Final Rule, the
Department sets the standard salary level equal to the 40th percentile
of earnings of full-time salaried workers in the lowest-wage Census
Region (currently the South). This results in a salary level of $913
per week, or $47,476 annually for a full-year worker, based on data
from the fourth quarter of 2015.\311\ The Department believes that a
standard salary level set at the 40th percentile of full-time salaried
employees in the lowest-wage Census Region will accomplish the goal of
setting a salary threshold that adequately distinguishes between
employees who may meet the duties requirements of the EAP exemption and
those who likely do not, without necessitating the reintroduction of a
limit on nonexempt work, as existed under the long duties test. The
Department sets the HCE total annual compensation level equal to the
90th percentile of earnings of full-time salaried workers nationally
($134,004 annually based on the fourth quarter of 2015), as we
proposed. This increase will bring the annual compensation requirement
in line with the level established in 2004. The Department believes
that this will avoid the unintended exemption of large numbers of
employees in high-wage areas--such as secretaries in New York City or
Los Angeles--who are clearly not performing EAP duties.
---------------------------------------------------------------------------
\311\ The Bureau of Labor Statistics (BLS) estimated this value
using Current Population Survey (CPS) data for earnings of full-time
(defined as at least 35 hours per week) non-hourly paid employees.
For the purpose of this rulemaking, the Department considers data
representing compensation paid to non-hourly workers to be an
appropriate proxy for compensation paid to salaried workers.
---------------------------------------------------------------------------
In order to prevent the salary and compensation levels from
becoming outdated, the Department is including in the regulations a
mechanism to automatically update the salary and compensation
thresholds by maintaining the fixed percentiles of weekly earnings set
in this Final Rule. In response to comments, however, the Final Rule
provides for updates every three years rather than for annual updates
as proposed. The first update will take effect on January 1, 2020. The
Department believes that regularly updating the salary and compensation
levels is the best method to ensure that these tests continue to
provide an effective means of distinguishing between overtime-eligible
white collar employees and those who may be bona fide EAP employees.
Based on historical wage growth in the South, at the time of the first
update on January 1, 2020, the standard salary level is likely to be
approximately $984 per week ($51,168 annually for a full-year worker)
and the HCE total annual compensation requirement is likely to be
approximately $147,524.
The Department also revises the regulations to permit employers for
the first time to count nondiscretionary bonuses, incentives, and
commissions toward up to 10 percent of the required salary level for
the standard exemption,
[[Page 32545]]
so long as employers pay those amounts on a quarterly or more frequent
basis.
In setting the effective date of the rule, the Department responded
to concerns raised about the amount of time required to evaluate and
adjust to the new salary level. While the 2004 rule provided for 120
days, the final rule provides 180 days prior to the effective date.
Finally, the Department sought comments on modifications to the
duties test in the proposed rule as a means to modernize overtime
protections. In reviewing those comments including numerous responses
from small entities, the Department decided to not make any changes to
the duties tests in this Final Rule.
i. Differing Compliance and Reporting Requirements for Small Entities
This Final Rule provides no differing compliance requirements and
reporting requirements for small entities. The Final Rule imposes no
new reporting or recordkeeping requirements, although employers will be
required to record and maintain records, as required by part 516, for
additional workers if employees are reclassified from exempt to
overtime-protected status. The Department has strived to minimize
respondent recordkeeping burden by requiring no specific form or order
of records under the FLSA and its corresponding regulations. Moreover,
employers would normally maintain the records under usual or customary
business practices.
ii. Least Burdensome Option or Explanation Required
The Department believes it has chosen the most effective option
that updates and clarifies the rule and which results in the least
burden. Among the options considered by the Department, the least
restrictive option was inflating the 2004 standard salary level to
FY2015 dollars using CPI-U (which would result in a standard salary
level of $570 per week) and the most restrictive was updating the 1975
short test salary level for inflation based upon the CPI-U (which would
result in a standard salary level of $1,100 per week). A lower salary
level--or a degraded stagnant level over time--would result in a less
effective bright-line test for separating potentially exempt workers
from those nonexempt workers intended to be within the Act's
protection. A low salary level will also increase the role of the
duties test in determining whether an employee is exempt, which would
increase the likelihood of misclassification and, in turn, increase the
risk that employees who should receive overtime and minimum wage
protections under the FLSA are denied those protections. The Department
found the most restrictive option to be overly burdensome on business
in general, and specifically on small businesses. It was also
inappropriately high given the fact that the long duties test (which
was associated with a lower salary level) no longer exists.
Pursuant to section 603(c) of the RFA, the following alternatives
are to be addressed:
Differing compliance or reporting requirements that take
into account the resources available to small entities. The FLSA
creates a level playing field for businesses by setting a floor below
which employers may not pay their employees. To establish differing
compliance or reporting requirements for small businesses would
undermine this important purpose of the FLSA, and appears to be
unnecessary given the small annualized cost of the rule. The Year 1
cost of the Final Rule was estimated to be around $3,265 for a typical
employer that qualifies as small, which is 0.87 percent of average
annual payroll and 0.17 percent of average annual revenues. The
Department makes available a variety of resources to employers for
understanding their obligations and achieving compliance. Therefore the
Final Rule does not provide differing compliance or reporting
requirements for small businesses.
The use of performance rather than design standards. Under
the Final Rule, the employer may achieve compliance through a variety
of means. The employer may elect to continue to claim the EAP exemption
for affected employees by adjusting their salary level, hire additional
workers or spread overtime hours to other employees, or compensate
employees for overtime hours worked. The Department makes available to
employers a variety of resources for understanding their obligations
and achieving compliance.
An exemption from coverage of the rule, or any part
thereof, for such small entities. Creating an exemption from coverage
of this rule for businesses with as many as 1,500 employees (those
defined as small businesses under SBA's size standards) is inconsistent
with Congressional intent in the enactment of the FLSA, which applies
to all employers that satisfy the enterprise coverage threshold or
employ individually covered employees. See 29 U.S.C. 203(s).
F. Identification, to the Extent Practicable, of all Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Final Rule
The Department is not aware of any federal rules that duplicate,
overlap, or conflict with this Final Rule.
VIII. Unfunded Mandates Reform Act Analysis
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501,
requires agencies to prepare a written statement for rules for which a
general notice of proposed rulemaking was published and that include
any federal mandate that may result in increased expenditures by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $156 million ($100 million in 1995 dollars adjusted for
inflation) or more in at least one year. This statement must: (1)
Identify the authorizing legislation; (2) present the estimated costs
and benefits of the rule and, to the extent that such estimates are
feasible and relevant, its estimated effects on the national economy;
(3) summarize and evaluate state, local, and tribal government input;
and (4) identify reasonable alternatives and select, or explain the
non-selection, of the least costly, most cost-effective, or least
burdensome alternative.
A. Authorizing Legislation
This Final Rule is issued pursuant to section 13(a)(1) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 213(a)(1). The section exempts
from the FLSA's minimum wage and overtime pay requirements ``any
employee employed in a bona fide executive, administrative, or
professional capacity (including any employee employed in the capacity
of academic administrative personnel or teacher in elementary or
secondary schools), or in the capacity of outside salesman (as such
terms are defined and delimited from time to time by regulations of the
Secretary, subject to the provisions of [the Administrative Procedure
Act] . . . ).'' 29 U.S.C. 213(a)(1). The requirements of the exemption
provided by this section of the Act are contained in part 541 of the
Department's regulations. Section 3(e) of the FLSA, 29 U.S.C. 203(e),
defines ``employee'' to include most individuals employed by a state,
political subdivision of a state, or interstate governmental agency.
Section 3(x) of the FLSA, 29 U.S.C. 203(x), also defines public
agencies to include the government of a state or political subdivision
thereof, or any interstate governmental agency.
[[Page 32546]]
B. Assessment of Costs and Benefits
For purposes of UMRA, this rule includes a federal mandate that is
expected to result in increased expenditures by the private sector of
more than $156 million in at least one year, but the rule will not
result in increased expenditures by state, local and tribal
governments, in the aggregate, of $156 million or more in any one year.
Costs to state and local governments: Based on the economic impact
analysis of this Final Rule, the Department determined that the Final
Rule will result in Year 1 costs for state and local governments
totaling $115.1 million, of which $38.8 million are direct employer
costs and $76.3 million are payroll increases (5). Additionally, the
Final Rule will lead to $0.3 million in dead weight loss (DWL). In
subsequent years, the Department estimated that state and local
governments may experience payroll increases of as much as $85.4
million in a year when the salary level is automatically updated.
Costs to the private sector: The Department determined that the
Final Rule will result in Year 1 costs to the private sector of
approximately $1.8 billion, of which $637.7 million are direct employer
costs and $1.2 billion are payroll increases. Additionally, the Final
Rule will result in $6.0 million in DWL. In subsequent years, the
Department estimated that the private sector may experience a payroll
increase of as much as $1.5 billion per year.
Table 47--Summary of Year 1 Affected EAP Workers, Regulatory Costs, and Transfers by Type of Employer
----------------------------------------------------------------------------------------------------------------
Total Private Government \a\
----------------------------------------------------------------------------------------------------------------
Affected EAP Workers (1,000s)
----------------------------------------------------------------------------------------------------------------
Number.......................................................... 4,228 3,765 452
----------------------------------------------------------------------------------------------------------------
Direct Employer Costs (Millions)
----------------------------------------------------------------------------------------------------------------
Regulatory familiarization...................................... $272.5 $268.9 $3.3
Adjustment...................................................... 191.4 170.5 20.5
Managerial...................................................... 214.0 198.3 15.1
Total direct costs.............................................. 677.9 637.7 38.8
----------------------------------------------------------------------------------------------------------------
Payroll Increases (Millions)
----------------------------------------------------------------------------------------------------------------
From employers to workers....................................... $1,285.2 $1,206.4 $76.3
----------------------------------------------------------------------------------------------------------------
Direct Employer Costs & Transfers (Millions)
----------------------------------------------------------------------------------------------------------------
From employers.................................................. $1,963.1 $1,844.1 $115.1
----------------------------------------------------------------------------------------------------------------
DWL (Millions)
----------------------------------------------------------------------------------------------------------------
DWL \b\......................................................... $6.4 $6.0 $0.3
----------------------------------------------------------------------------------------------------------------
\a\ Includes only state, local, and tribal governments.
\b\ DWL was estimated based on the aggregate impact of both the minimum wage and overtime pay provisions.
The largest estimated impact to workers is likely the transfer of
income to workers from some combination of employers, end consumers,
and other workers); but, to the extent that the utility derived by
workers outweighs the disutility experienced by employers and other
entities experiencing the negative side of transfers, there may be a
societal welfare increase due to this transfer. The channels through
which societal welfare may change, and other secondary benefits,
transfers and costs may occur, include: Decreased litigation costs due
to fewer workers subject to the duties test, the multiplier effect of
the transfer, changes in productivity, potentially reduced dependence
on social assistance, and a potential increase in time off and its
associated benefits to the social welfare of some workers (for
instance, those who work so many hours that the overtime requirement
renders their current combination of pay and hours worked non-compliant
with the minimum wage). Additionally, because of the increased salary
level, overtime protection will be strengthened for 5.7 million
salaried white collar workers and 3.2 million salaried blue collar
workers who do not meet the duties requirements for the EAP exemption,
but who earn between the current minimum salary level of $455 per week
and the updated salary level, because their right to minimum wage and
overtime protection will be clear rather than depend upon an analysis
of their duties.
UMRA requires agencies to estimate the effect of a regulation on
the national economy if, at its discretion, such estimates are
reasonably feasible and the effect is relevant and material. 5 U.S.C.
1532(a)(4). However, OMB guidance on this requirement notes that such
macro-economic effects tend to be measurable in nationwide econometric
models only if the economic impact of the regulation reaches 0.25
percent to 0.5 percent of GDP, or in the range of $44.9 billion to
$89.7 billion (using 2015 GDP). A regulation with smaller aggregate
effect is not likely to have a measurable impact in macro-economic
terms unless it is highly focused on a particular geographic region or
economic sector, which is not the case with this Final Rule.
The Department's RIA estimates that the total first-year costs
(direct employer costs, payroll increases from employers to workers,
and deadweight loss) of the Final Rule will be approximately $1.8
billion for private employers and $115.1 million for state and local
governments. Given OMB's guidance, the Department has determined that a
full macro-economic analysis is not likely to show any measurable
impact on the economy. Therefore, these costs are compared to payroll
costs and revenue to demonstrate the feasibility of adapting to these
new rules.
Total first-year private sector costs compose 0.03 percent of
private sector
[[Page 32547]]
payrolls nationwide.\312\ Total private sector first-year costs compose
0.005 percent of national private sector revenues (revenues in FY2015
are projected to be $40.7 trillion).\313\ The Department concludes that
impacts of this magnitude are affordable and will not result in
significant disruptions to typical firms in any of the major industry
categories.
---------------------------------------------------------------------------
\312\ Private sector payroll costs nationwide are projected to
be $5.7 trillion in FY2015. This projection is based on private
sector payroll costs in 2012, which were $5.6 trillion using the
2012 Economic Census of the United States. This was inflated to
FY2015 dollars using the CPI-U. Table EC0700A1: All sectors:
Geographic Area Series: Economy-Wide Key Statistics: 2007.
\313\ Private sector revenues in 2012 were $39.4 trillion using
the 2012 Economic Census of the United States. This was inflated to
FY2015 dollars using the CPI-U. Table EC0700A1: All sectors:
Geographic Area Series: Economy-Wide Key Statistics: 2007.
---------------------------------------------------------------------------
Total first-year state and local government costs compose
approximately 0.01 percent of state and local government payrolls.\314\
First-year state and local government costs compose 0.004 percent of
state and local government revenues (projected FY2015 revenues were
estimated to be $3.1 trillion).\315\ Impacts of this magnitude will not
result in significant disruptions to typical state and local
governments. The $115.1 million in state and local government costs
constitutes an average of approximately $1,277 for each of the
approximately 90,106 state and local entities. The Department considers
impacts of this magnitude to be quite small both in absolute terms and
in relation to payrolls and revenue.
---------------------------------------------------------------------------
\314\ Projected FY2015 payroll costs are estimated to be $878.5
billion. This projection is based on state and local payroll costs
in 2012, which were reported in the Census of Governments data as
$852 billion. This was inflated to FY2015 dollars using the CPI-U.
2012 Census of Governments: Employment Summary Report. Available at:
http://www2.census.gov/govs/apes/2012_summary_report.pdf.
\315\ State and local revenues in 2012 were reported by the
Census as $3.0 trillion. This was inflated to FY2015 dollars using
the CPI-U. U.S. Department of Commerce. (2014). 2012 Census of
Governments: Finance-- State and Local Government Summary Report.
Available at: http://www2.census.gov/govs/local/summary_report.pdf.
---------------------------------------------------------------------------
C. Response to Comments
i. Consultation Prior to the Issuance of the NPRM
Prior to issuing the NPRM, the Department embarked on an extensive
outreach program, conducting listening sessions in Washington, DC, and
several other locations, as well as by conference call. As part of this
outreach program, the Department conducted stakeholder listening
sessions with representatives of state, local, and tribal governments.
In these sessions the Department asked stakeholders to address, among
other issues, three questions: (1) What is the appropriate salary level
for exemption; (2) what, if any, changes should be made to the duties
tests; and (3) how can the regulations be simplified. The discussions
in the listening sessions informed the development of the NPRM.
ii. Comments Received in Response to the NPRM
In the NPRM, the Department specifically sought comments from
state, local, and tribal governments concerning the ability of these
entities to absorb the costs related to the proposed revisions. The
Department received multiple comments on this and other issues from
state, local, and tribal governments. Many of these commenters raised
concerns about the Department's proposal to increase the salary level.
Several commenters writing on behalf of state or local governments
asserted that public employers would respond to the proposed salary
level increase by cutting vital services or increasing taxes. See,
e.g., Charlotte County, Florida; Pennsylvania State Association of
Township Supervisors; Rockingham County, Virginia. Several commenters
writing on behalf of tribal governments similarly asserted that tribes
would be forced to respond to the proposed salary level increase by
reducing services to tribal communities. See, e.g., Ho-Chunk, Inc. (a
company wholly owned by the Winnebago Tribe of Nebraska); Native
American Finance Officers Association. The Jamestown S'Kallam Tribe
stated that ``requiring Tribal business to `transfer income' to
employees takes money not only out of tribal governments, but to the
economy of the surrounding communities as tribes provide enormous
employment opportunities to the non-native communities.'' Given these
concerns, some commenters writing on behalf of state, local, or tribal
governments requested that the Department adopt a lower standard salary
threshold than we proposed and/or a phase-in period for raising the
salary, while other commenters requested a special salary level or an
exemption from the salary level or the FLSA's requirements for state,
local, and tribal governments. See, e.g., Georgia Department of
Administrative Services; Isle of Wight County, Virginia; Mississippi
State Personnel Board; Pennsylvania State Association of Township
Supervisors; New Mexico State Personnel Board. In addition to their
concerns about the salary level, some commenters, for example the New
Mexico State Personnel Board and the Mississippi State Personnel Board,
also expressed concern about the Department's proposal to update the
salary level annually, and some requested that the Department not make
any changes to the duties test.
As discussed in this Final Rule, the Department has modified the
proposed rule by setting the salary level equal to the 40th percentile
weekly earnings of full-time salaried workers in the lowest-wage Census
Region (currently the South). We believe that this adjustment will
provide relief for state, local, and tribal government employers, as it
does for employers in low-wage areas and industries. Furthermore, the
Department has decided to automatically update the salary level every
three years rather than annually, and the Final Rule does not make any
changes to the duties test. The Department notes that we expect
employers to respond in a variety of ways to changes in salary level,
and the manner in which an employer responds will affect how the
employer (and its employees) is impacted. In response to comments
suggesting the implementation of a special salary threshold or an
exemption for state, local, or tribal government employers, the
Department did not propose any different treatment for employees of
state, local, or tribal government employers or ask any questions in
the NPRM about such a change; therefore, we believe the special
provisions sought are beyond the scope of this rulemaking.
Some state, local, and tribal governments expressed concern with
our automatic updating proposal. Several commenters stressed the
burdens this change would impose on public sector employers. For
example, the California State Association of Counties stated that the
``volatility of the [salary level] changes'' resulting from annual
automatic updating would ``make planning and budgeting very
challenging,'' while the Charlotte County Board of County Commissioners
asked the Department to ``strongly consider the increased
administrative and financial burdens'' that annual updating ``would
place on county governments.'' See also City of Galax. Similarly, the
New Mexico State Personnel Board stated that ``in the public sector, an
automatic annual increase would become an unbudgeted mandate placed on
the Executive and the Legislature, which would require the State to
respond both fiscally and administratively,'' and that this change
could negatively impact employee morale and productively, the State's
budgeting process, and ``may cause budgets to be diverted from other
areas such as health, safety, and security, possibly impacting services
to citizens.''
[[Page 32548]]
While most tribal government commenters did not specifically address
this aspect of the Department's proposal, the Chitimacha Tribe of
Louisiana stated that annual automatic updating could negatively impact
employee morale, increase burdens on tribal businesses (including its
casino hotel), make it harder to estimate year-to-year costs, and
``would be tantamount to Chitimacha being required to give its
government and business enterprise salaried employees a raise every
year or be forced to reclassify the worker as an hourly employee.''
Some state and local government commenters specifically addressed
the automatic updating alternatives discussed in the Department's
proposal. The New Mexico State Personnel Board opposed both updating
methods, stating that ``the CPI-U measures purchasing power . . . [and
not] the supply and demand of labor,'' and that the fixed percentile
approach would ``result in an accelerated upward movement of the
[salary] threshold, as previously salaried workers are reclassified to
hourly, or as they have their incomes increased to be over the new''
threshold.
Other commenters appeared more receptive to automatic updating,
provided the Department make certain changes from our proposal. The
Georgia Department of Administrative Services and the Mississippi State
Personnel Board stated that a wage index (rather than a price index)
provided a more appropriate basis for automatic updates, although both
commenters favored other changes including updating only every five
years and, rather than a nationwide effective date, permitting
employers to determine when updated salary levels would apply to their
organizations. The Commonwealth of Virginia's Department of Human
Resource Management (which supported a lower salary level) favored
updating using ``a measure such as the Employment Cost Index,'' while
some state, local, and tribal governments that opposed aspects of the
Department's rulemaking did not specifically address our automatic
updating proposal. See, e.g., City of Seward, Alaska; Elk Valley
Rancheria Indian Tribe; Indiana Association of Cities and Towns;
National League of Cities.
The Department concludes that the concerns raised by state, local,
and tribal governments do not provide a basis for declining to
institute automatic updating. We recognize that in some instances
public sector employers may face different employment environments than
their private sector counterparts. However, the Department believes
that any unique burdens that automatic updating may pose for government
employers are adequately mitigated by the Department's decision to
automatically update the salary level every three years (instead of
annually) and to increase from 60 to 150 days the notice before
automatically updated salary levels take effect. Additionally, between
updates all employers can access BLS data to estimate the likely size
of the next updated salary level. These changes should provide
government employers sufficient time and predictability to allow
adaptation to, and compliance with, new salary levels. We also
reiterate, as discussed in sections IV.E.ii.-iii, that nothing in this
rulemaking requires employers to convert newly nonexempt employees to
hourly status or reward underperforming employees with a raise. As to
what method the Department should use to automatically update the
salary level, commenters from State, local, and tribal governments
generally raised the same points as non-government commenters. For the
reasons already discussed at length, we conclude that automatic
updating using the fixed percentile method will best ensure that the
salary level continues to serve, in tandem with the duties test, as an
effective dividing line between potentially exempt and nonexempt
workers.
Some of commenters suggested that the Department failed to
adequately consult with state, local, and tribal governments in
developing the rule. For example, the State of Maine Department of
Labor asserted that ``USDOL did not reach out to all states to discuss
the impacts this proposed rule change would have on the states.'' The
Elk Valley Rancheria Indian Tribe asserted that ``there has been no
tribal consultation on this rule-making,'' and the Ute Mountain Ute
Tribe stated that ``the proposed rule will have a substantial and
direct effect on the Tribe and is subject to consultation under
Executive Order 13175.'' See also, e.g., Gila River Indian Community;
Confederated Tribes of the Umatilla Indian Reservation; Poarch Band of
Creek Indians. Finally, some commenters, such as the Isle of Wight
County, Virginia, urged the Department ``to delay implementation'' of
the rule ``until further analysis is done on the increased financial
and administrative burdens it would place on county governments.'' The
Department disagrees that there has been little or no tribal
consultation or consultation with state and local governments on this
rulemaking. As discussed above, the Department conducted an extensive
outreach program, including several listening sessions that were
specific to state, local, and tribal governments. Representatives from
multiple states, local governments, and tribal governments participated
in these listening sessions. In addition, the Department engaged
associations representing governmental organizations such as:
Interstate Labor Standards Association, National Association of
Counties, National Association of Latino Elected and Appointed
Officials, National Association of State Workforce Agencies, National
Black Caucus of State Legislators, National Conference of State
Legislatures, National Congress of American Indians, National Governors
Association, National League of Cities, Progressive States Network, and
the U.S. Conference of Mayors.
D. Least Burdensome Option or Explanation Required
The Department's consideration of various options has been
described throughout the preamble and economic impact analysis (section
VI). The Department believes that it has chosen the least burdensome
but still cost-effective mechanism to update the salary level and index
future levels that is also consistent with the Department's statutory
obligation. Although some alternative options considered, such as
inflating the 2004 standard salary level to FY2015 dollars resulting in
a salary level of $570 per week, would have set the standard salary
level at a rate lower than the updated salary level, which might impose
lower direct payroll costs on employers, that outcome would not
necessarily be the most cost-effective or least burdensome alternative
for employers. A lower salary level--or a degraded stagnant level over
time--would result in a less effective bright-line test for separating
workers who may be exempt from those nonexempt workers intended to be
within the Act's protection. A low salary level will also increase the
role of the duties test in determining whether an employee is exempt,
which would increase the likelihood of misclassification and, in turn,
increase the risk that employees who should receive overtime and
minimum wage protections under the FLSA are denied those protections.
Selecting a standard salary level inevitably impacts both the risk
and cost of misclassification of overtime-eligible employees earning
above the salary level as well as the risk and cost of providing
overtime protection to employees performing bona fide EAP duties who
are paid below the salary level. An unduly low level risks
[[Page 32549]]
increasing employer liability from unintentionally misclassifying
workers as exempt; but an unduly high standard salary level increases
labor costs to employers precluded from claiming the exemption for
employees performing bona fide EAP duties. Thus the ultimate cost of
the regulation is increased if the standard salary level is set either
too low or too high. The Department has determined that setting the
standard salary level at the 40th percentile of earnings of full-time
salaried workers in the lowest-wage Census Region (currently the South)
and automatically updating this level every three years best balances
the risks and costs of misclassification of exempt status.
IX. Executive Order 13132 (Federalism)
The Department has reviewed this Final Rule in accordance with
Executive Order 13132 regarding federalism, and determined that it does
not have federalism implications. The Final Rule will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
X. Executive Order 13175, Indian Tribal Governments
The Department has reviewed this Final Rule under the terms of
Executive Order 13175 and determined that it does not have ``tribal
implications.'' The Final Rule does not have ``substantial direct
effects on one or more Indian tribes, on the relationship between the
federal government and Indian tribes, or on the distribution of power
and responsibilities between the federal government and Indian
tribes.'' As a result, no tribal summary impact statement has been
prepared.
XI. Effects on Families
The undersigned hereby certifies that this Final Rule will not
adversely affect the well-being of families, as discussed under section
654 of the Treasury and General Government Appropriations Act, 1999.
XII. Executive Order 13045, Protection of Children
Executive Order 13045 applies to any rule that (1) is determined to
be ``economically significant'' as defined in Executive Order 12866,
and (2) concerns an environmental health or safety risk that the
promulgating agency has reason to believe may have a disproportionate
effect on children. This Final Rule is not subject to Executive Order
13045 because it has no environmental health or safety risks that may
disproportionately affect children.
XIII. Environmental Impact Assessment
A review of this Final Rule in accordance with the requirements of
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11,
indicates that the Final Rule will not have a significant impact on the
quality of the human environment. As a result, there is no
corresponding environmental assessment or an environmental impact
statement.
XIV. Executive Order 13211, Energy Supply
This Final Rule is not subject to Executive Order 13211. It will
not have a significant adverse effect on the supply, distribution, or
use of energy.
XV. Executive Order 12630, Constitutionally Protected Property Rights
This Final Rule is not subject to Executive Order 12630, because it
does not involve implementation of a policy ``that has takings
implications'' or that could impose limitations on private property
use.
XVI. Executive Order 12988, Civil Justice Reform Analysis
This Final Rule was drafted and reviewed in accordance with
Executive Order 12988 and will not unduly burden the federal court
system. The Final Rule was: (1) Reviewed to eliminate drafting errors
and ambiguities; (2) written to minimize litigation; and (3) written to
provide a clear legal standard for affected conduct and to promote
burden reduction.
List of Subjects in 29 CFR part 541
Labor, Minimum wages, Overtime pay, Salaries, Teachers, Wages.
David Weil,
Administrator, Wage and Hour Division.
PART 541--DEFINING AND DELIMITING THE EXEMPTIONS FOR EXECUTIVE,
ADMINISTRATIVE, PROFESSIONAL, COMPUTER AND OUTSIDE SALES EMPLOYEES
0
1. The authority citation for part 541 is revised to read as follows:
Authority: 29 U.S.C. 213; Pub. L. 101-583, 104 Stat. 2871;
Reorganization Plan No. 6 of 1950 (3 CFR, 1945-53 Comp., p. 1004);
Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24,
2014).
0
2. In Sec. 541.100, revise paragraph (a)(1) to read as follows:
Sec. 541.100 General rule for executive employees.
(a) * * *
(1) Compensated on a salary basis pursuant to Sec. 541.600 at a
rate per week of not less than the 40th percentile of weekly earnings
of full-time nonhourly workers in the lowest-wage Census Region (or 84
percent of that amount per week, if employed in American Samoa by
employers other than the Federal government), exclusive of board,
lodging or other facilities. Beginning January 1, 2020, and every three
years thereafter, the Secretary shall update the required salary amount
pursuant to Sec. 541.607;
* * * * *
0
3. In Sec. 541.200, revise paragraph (a)(1) to read as follows:
Sec. 541.200 General rule for administrative employees.
(a) * * *
(1) Compensated on a salary or fee basis pursuant to Sec. 541.600
at a rate per week of not less than the 40th percentile of weekly
earnings of full-time nonhourly workers in the lowest-wage Census
Region (or 84 percent of that amount per week, if employed in American
Samoa by employers other than the Federal government), exclusive of
board, lodging or other facilities. Beginning January 1, 2020, and
every three years thereafter, the Secretary shall update the required
salary amount pursuant to Sec. 541.607;
* * * * *
0
4. In Sec. 541.204, revise paragraph (a)(1) to read as follows:
Sec. 541.204 Educational establishments.
(a) * * *
(1) Compensated on a salary or fee basis pursuant to Sec. 541.600
at a rate per week of not less than the 40th percentile of weekly
earnings of full-time nonhourly workers in the lowest-wage Census
Region (or 84 percent of that amount per week, if employed in American
Samoa by employers other than the Federal government), exclusive of
board, lodging or other facilities; or on a salary basis which is at
least equal to the entrance salary for teachers in the educational
establishment by which employed. Beginning January 1, 2020, and every
three years thereafter, the Secretary shall update the required salary
amount pursuant to Sec. 541.607; and
* * * * *
0
5. In Sec. 541.300, revise paragraph (a)(1) to read as follows:
[[Page 32550]]
Sec. 541.300 General rule for professional employees.
(a) * * *
(1) Compensated on a salary or fee basis pursuant to Sec. 541.600
at a rate per week of not less than the 40th percentile of weekly
earnings of full-time nonhourly workers in the lowest-wage Census
Region (or 84 percent of that amount per week, if employed in American
Samoa by employers other than the Federal government), exclusive of
board, lodging or other facilities. Beginning January 1, 2020, and
every three years thereafter, the Secretary shall update the required
salary amount pursuant to Sec. 541.607; and
* * * * *
0
6. In Sec. 541.400, remove the first sentence in paragraph (b)
introductory text and add three sentences in its place.
The additions read as follows:
Sec. 541.400 General rule for computer employees.
* * * * *
(b) The section 13(a)(1) exemption applies to any computer employee
who is compensated on a salary or fee basis pursuant to Sec. 541.600
at a rate per week of not less than the 40th percentile of weekly
earnings of full-time nonhourly workers in the lowest-wage Census
Region (or 84 percent of that amount per week, if employed in American
Samoa by employers other than the Federal government), exclusive of
board, lodging or other facilities. Beginning January 1, 2020, and
every three years thereafter, the Secretary shall update the required
salary amount pursuant to Sec. 541.607. The section 13(a)(17)
exemption applies to any computer employee compensated on an hourly
basis at a rate of not less than $27.63 an hour. * * *
* * * * *
0
7. Amend Sec. 541.600 by removing the first sentence of paragraph (a)
and adding three sentences in its place and revising paragraph (b).
The revisions and additions read as follows:
Sec. 541.600 Amount of salary required.
(a) To qualify as an exempt executive, administrative or
professional employee under section 13(a)(1) of the Act, an employee
must be compensated on a salary basis at a rate per week of not less
than the 40th percentile of weekly earnings of full-time nonhourly
workers in the lowest-wage Census Region. As of December 1, 2016, and
until a new rate is published in the Federal Register by the Secretary,
such an employee must be compensated on a salary basis at a rate per
week of not less than $913 (or $767 per week, if employed in American
Samoa by employers other than the Federal government), exclusive of
board, lodging or other facilities. Beginning January 1, 2020, and
every three years thereafter, the Secretary shall update the required
salary amount pursuant to Sec. 541.607. * * *
(b) The required amount of compensation per week may be translated
into equivalent amounts for periods longer than one week. The
requirement will be met if the employee is compensated biweekly on a
salary basis of $1,826, semimonthly on a salary basis of $1,978, or
monthly on a salary basis of $3,956. However, the shortest period of
payment that will meet this compensation requirement is one week.
Beginning January 1, 2020, and every three years thereafter, the
Secretary shall update the required salary amount pursuant to Sec.
541.607 and the updated salary amount may be paid weekly, biweekly,
semimonthly, or monthly on a salaried basis.
* * * * *
0
8. Amend Sec. 541.601 by:
0
a. Revising paragraph (a);
0
b. Adding introductory text to paragraph (b);
0
c. Revising the first sentence of paragraph (b)(1); and
0
d. Revising paragraph (b)(2).
The revisions and additions read as follows:
Sec. 541.601 Highly compensated employees.
(a) An employee shall be exempt under section 13(a)(1) of the Act
if:
(1) The employee receives total annual compensation of at least the
annualized earnings amount of the 90th percentile of full-time
nonhourly workers nationally; and
(2) The employee customarily and regularly performs any one or more
of the exempt duties or responsibilities of an executive,
administrative or professional employee identified in subpart B, C, or
D of this part.
(b) As of December 1, 2016, and until a new amount is published in
the Federal Register by the Secretary and becomes effective, such an
employee must receive total annual compensation of at least $134,004.
Beginning January 1, 2020, and every three years thereafter, the
Secretary shall update the required total annual compensation amount
pursuant to Sec. 541.607.
(1) ``Total annual compensation'' must include at least a weekly
amount equal to the required salary amount required by Sec. 541.600(a)
paid on a salary or fee basis as set forth in Sec. Sec. 541.602 and
541.605, except that Sec. 541.602(a)(3) shall not apply to highly
compensated employees. * * *
(2) If an employee's total annual compensation does not total at
least the minimum amount established in paragraph (a) of this section
by the last pay period of the 52-week period, the employer may, during
the last pay period or within one month after the end of the 52-week
period, make one final payment sufficient to achieve the required
level. For example, if the current annual salary level for a highly
compensated employee is $134,004, an employee may earn $100,000 in base
salary, and the employer may anticipate based upon past sales that the
employee also will earn $35,000 in commissions. However, due to poor
sales in the final quarter of the year, the employee actually only
earns $10,000 in commissions. In this situation, the employer may
within one month after the end of the year make a payment of at least
$24,004 to the employee. Any such final payment made after the end of
the 52-week period may count only toward the prior year's total annual
compensation and not toward the total annual compensation in the year
it was paid. If the employer fails to make such a payment, the employee
does not qualify as a highly compensated employee, but may still
qualify as exempt under subparts B, C, or D of this part.
* * * * *
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9. In Sec. 541.602, revise paragraph (a) to read as follows:
(a) General rule. An employee will be considered to be paid on a
``salary basis'' within the meaning of this part if the employee
regularly receives each pay period on a weekly, or less frequent basis,
a predetermined amount constituting all or part of the employee's
compensation, which amount is not subject to reduction because of
variations in the quality or quantity of the work performed.
(1) Subject to the exceptions provided in paragraph (b) of this
section, an exempt employee must receive the full salary for any week
in which the employee performs any work without regard to the number of
days or hours worked. Exempt employees need not be paid for any
workweek in which they perform no work.
(2) An employee is not paid on a salary basis if deductions from
the employee's predetermined compensation are made for absences
occasioned by the employer or by the operating requirements of the
business. If the employee is ready, willing and able to work,
deductions may not be made for time when work is not available.
[[Page 32551]]
(3) Up to ten percent of the salary amount required by Sec.
541.600(a) may be satisfied by the payment of nondiscretionary bonuses,
incentives, and commissions, that are paid quarterly or more
frequently. If by the last pay period of the quarter the sum of the
employee's weekly salary plus nondiscretionary bonus, incentive, and
commission payments received does not equal 13 times the weekly salary
amount required by Sec. 541.600(a), the employer may make one final
payment sufficient to achieve the required level no later than the next
pay period after the end of the quarter. Any such final payment made
after the end of the 13-week period may count only toward the prior
quarter's salary amount and not toward the salary amount in the quarter
it was paid. This provision does not apply to highly compensated
employees under Sec. 541.601.
* * * * *
0
10. Revise Sec. 541.604 to read as follows:
Sec. 541.604 Minimum guarantee plus extras.
(a) An employer may provide an exempt employee with additional
compensation without losing the exemption or violating the salary basis
requirement, if the employment arrangement also includes a guarantee of
at least the minimum weekly-required amount paid on a salary basis.
Thus, for example, if the current weekly salary level is $913, an
exempt employee guaranteed at least $913 each week paid on a salary
basis may also receive additional compensation of a one percent
commission on sales. An exempt employee also may receive a percentage
of the sales or profits of the employer if the employment arrangement
also includes a guarantee of at least $913 each week paid on a salary
basis. Similarly, the exemption is not lost if an exempt employee who
is guaranteed at least $913 each week paid on a salary basis also
receives additional compensation based on hours worked for work beyond
the normal workweek. Such additional compensation may be paid on any
basis (e.g., flat sum, bonus payment, straight-time hourly amount, time
and one-half or any other basis), and may include paid time off.
(b) An exempt employee's earnings may be computed on an hourly, a
daily or a shift basis, without losing the exemption or violating the
salary basis requirement, if the employment arrangement also includes a
guarantee of at least the minimum weekly required amount paid on a
salary basis regardless of the number of hours, days or shifts worked,
and a reasonable relationship exists between the guaranteed amount and
the amount actually earned. The reasonable relationship test will be
met if the weekly guarantee is roughly equivalent to the employee's
usual earnings at the assigned hourly, daily or shift rate for the
employee's normal scheduled workweek. Thus, for example, if the weekly
salary level is $913, an exempt employee guaranteed compensation of at
least $1,000 for any week in which the employee performs any work, and
who normally works four or five shifts each week, may be paid $300 per
shift without violating the salary basis requirement. The reasonable
relationship requirement applies only if the employee's pay is computed
on an hourly, daily or shift basis. It does not apply, for example, to
an exempt store manager paid a guaranteed salary per week that exceeds
the current salary level who also receives a commission of one-half
percent of all sales in the store or five percent of the store's
profits, which in some weeks may total as much as, or even more than,
the guaranteed salary.
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11. In Sec. 541.605, revise paragraph (b) to read as follows:
Sec. 541.605 Fee basis.
* * * * *
(b) To determine whether the fee payment meets the minimum amount
of salary required for exemption under these regulations, the amount
paid to the employee will be tested by determining the time worked on
the job and whether the fee payment is at a rate that would amount to
at least the minimum salary per week, as required by Sec. Sec.
541.600(a) and 541.602(a), if the employee worked 40 hours. Thus, if
the salary level were $913, an artist paid $500 for a picture that took
20 hours to complete meets the minimum salary requirement for exemption
since earnings at this rate would yield the artist $1000 if 40 hours
were worked.
0
12. Add Sec. 541.607 to read as follows:
Sec. 541.607 Automatic updates to amounts of salary and compensation
required.
(a) Standard salary level. The amount required to be paid to an
exempt employee on a salary or fee basis, as applicable, pursuant to
Sec. Sec. 541.100(a)(1), 541.200(a)(1), 541.204(a)(1), 541.300(a)(1),
541.400(b), 541.600(a)-(b), 541.601(b)(1), 541.604(a), and 541.605(b),
is:
(1) $913 per week as of December 1, 2016; and
(2) Beginning on January 1, 2020, and every three years thereafter,
updated to equal the 40th percentile of weekly earnings of full-time
nonhourly workers in the lowest-wage Census Region in the second
quarter of the year preceding the update as published by the Bureau of
Labor Statistics.
(b) American Samoa. The amount required to be paid to an exempt
employee employed in American Samoa, on a salary or fee basis, pursuant
to Sec. Sec. 541.100(a)(1), 541.200(a)(1), 541.204(a)(1),
541.300(a)(1), 541.400(b), and 541.600(a), is:
(1) $767 per week as of December 1, 2016; and
(2) Beginning on January 1, 2020, and every three years thereafter:
(i) Updated to correspond to 84 percent of the updated salary set
in paragraph (a)(2) of this section; and
(ii) Rounded to the nearest multiple of $1.00;
(3) Provided that when the highest industry minimum wage for
American Samoa equals the minimum wage under 29 U.S.C. 206(a)(1),
exempt employees employed in all industries in American Samoa shall be
paid the rate specified in paragraph (a) of this section.
(c) Motion picture producing industry. The amount required to be
paid to an exempt motion picture producing employee pursuant to Sec.
541.709 is:
(1) $1,397 per week as of December 1, 2016; and
(2) Beginning on January 1, 2020, and every three years thereafter:
(i) Updated from the previously applicable base rate, adjusted by
the same percentage as the updated salary set in paragraph (a)(2) of
this section; and
(ii) Rounded to the nearest multiple of $1.00.
(d) The amount required in total annual compensation for an exempt
highly compensated employee pursuant to Sec. 541.601, is:
(1) $134,004 per year as of December 1, 2016; and
(2) Beginning on January 1, 2020, and every three years thereafter,
updated to correspond to the annualized earnings amount of the 90th
percentile of full-time nonhourly workers nationally in the second
quarter of the year preceding the update as published by the Bureau of
Labor Statistics.
(e) The Secretary will determine the lowest-wage Census Region for
paragraphs (a) and (b) of this section using the 40th percentile of
weekly earnings of full-time nonhourly workers in the Census Regions
based on data from the Current Population Survey as published by the
Bureau of Labor Statistics.
(f) The Secretary will use the 90th percentile of weekly earnings
data of full-time nonhourly workers nationally based on data from the
Current Population Survey as published by the
[[Page 32552]]
Bureau of Labor Statistics for paragraph (d) of this section.
(g) Not less than 150 days before the January 1st effective date of
the updated earnings requirements for this section, the Secretary will
publish a notice in the Federal Register stating the updated amounts
for paragraphs (a) through (d) of this section.
(h) The Wage and Hour Division will publish and maintain on its Web
site the applicable earnings requirements for employees paid pursuant
to this part.
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13. Revise Sec. 541.709 to read as follows:
Sec. 541.709 Motion picture producing industry.
The requirement that the employee be paid ``on a salary basis''
does not apply to an employee in the motion picture producing industry
who is compensated, as of December 1, 2016, at a base rate of at least
$1,397 per week (exclusive of board, lodging, or other facilities); and
beginning on January 1, 2020, and every three years thereafter, is
compensated at a base rate of at least the previously applicable base
rate adjusted by the same ratio as the preceding standard salary level
is increased (exclusive of board, lodging, or other facilities). Thus,
an employee in this industry who is otherwise exempt under subparts B,
C, or D of this part, and who is employed at a base rate of at least
the applicable current minimum amount a week is exempt if paid a
proportionate amount (based on a week of not more than 6 days) for any
week in which the employee does not work a full workweek for any
reason. Moreover, an otherwise exempt employee in this industry
qualifies for exemption if the employee is employed at a daily rate
under the following circumstances:
(a) The employee is in a job category for which a weekly base rate
is not provided and the daily base rate would yield at least the
minimum weekly amount if 6 days were worked; or
(b) The employee is in a job category having the minimum weekly
base rate and the daily base rate is at least one-sixth of such weekly
base rate.
[FR Doc. 2016-11754 Filed 5-18-16; 8:45 am]
BILLING CODE 4510-27-P