The New Jersey Employment Law Firm Blog
The Fair Labor Standards Act (FLSA) requires employers in New Jersey and around the country to pay overtime to non-exempt workers when they work more than forty hours in a week. Employers are not obligated to pay overtime to individuals who work “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has developed a definition of executive, administrative, and professional (EAP) jobs. It includes a requirement that a worker receive a minimum salary amount, currently set at $455 per week, or $23,660 per year. In 2016, the WHD sought to increase this minimum threshold, but a federal judge struck that rule down. A new proposal from the WHD, published in March 2019, would increase the minimum amount, but not nearly as much as the 2016 proposed rule. 84 Fed. Reg. 10900 (Mar. 22, 2019).
Employers must pay overtime to non-exempt workers at a rate of at least one-and-a half times their regular hourly rate. See 29 U.S.C. § 207(a)(1). The FLSA itself does not define the terms “executive,” “administrative,” or “professional.” The WHD has established guidelines for determining when an individual could legitimately be deemed to hold an EAP position that is exempt from the FLSA’s overtime rule. The guidelines are intended to prevent employers from labeling a job as an “executive” position for the sole purpose of avoiding overtime. The regulations specify that job titles are “insufficient to establish the exempt status of an employee.” 29 C.F.R. § 541.2. Among other criteria, a position must have a salary of at least $455 per week. Id. at §§ 541.100, 541.200, 541.300. The WHD set this minimum salary rate in 2004. 69 Fed. Reg. 22121 (Apr. 23, 2004).
The WHD sought to increase the minimum salary rate for EAP employees to $913 per week, or $47,476 per year, in 2016. 81 Fed. Reg. 32391 (May 23, 2016). This would be slightly more than double the existing rate. The previous increase in 2004 more than tripled the then-existing rate of $155 per week, which had been in place since 1975. 69 Fed. Reg. 22122. A group of state governments and business organizations filed suit against the DOL, which was part of the Obama administration at the time, seeking to block the new rule. A federal district court granted a preliminary injunction in Nevada, et al v. U.S. Dept. of Labor, et al, 218 F.Supp.3d 520 (E.D. Tex. 2016). In August 2017, the court granted summary judgment to the defendants, finding the rule invalid.
The DOL, now under the Trump administration, appealed the summary judgment ruling, but obtained a stay of the appeal in order to try issuing a new rule. The proposed new rule published in March would increase the minimum rate for EAP workers to $679 per week, or $35,308. This is slightly less than midway between the existing rate and the now-defunct 2016 proposed rule. Critics allege that, had the WHD allowed the 1975 rate keep pace with inflation, the minimum EAP salary would be more than $55,000 today.
The employment attorneys at the Resnick Law Group advocate for the rights of workers in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation with a member of our knowledgeable and experienced team.