Adviser Fall 2017 Dec. | Page 29

On November 22, 2016, the Court granted a nationwide preliminary injunction and stayed the implementation of the Final Rule. The Court held that the USDOL exceeded its authority and ignored Congress’s intent of the FLSA. On August 31, 2017, the Court ruled that the Final Rule was invalid. On October 30, 2017, the Department of Justice (“DOJ”), on behalf of the USDOL, appealed the Court’s decision that the Final Rule is invalid. At the same time, the DOJ has indicated that it will file a motion with the Court to “hold” the appeal while the USDOL undertakes further rulemaking to determine its own EAP salary threshold. Thus, it is unlikely that the changes to the FLSA that increased the EAP threshold to $913 per week will go into effect as originally drafted. Nevertheless, employers must continue to monitor this space for new developments as any new rulemaking by the USDOL could have a significant impact on your workforce. Further, while the increase to the FLSA EAP threshold has yet to take effect, this development does not affect the New York State Department of Labor’s recent changes to New York’s overtime exemption regulations, as set forth below. b. New York State Overtime Exemption New York overtime rules generally follow the FLSA. However, New York does not require any minimum weekly salary amount for the professional employee exemption. On December 28, 2016, the New York State Department of Labor (“NYSDOL”) finalized regulations to increase the income thresholds that allow employers to classify employees as exempt from paying overtime (“NY Final Rule”). The adopted changes to New York’s regulations on overtime were effective December 31, 2016 and apply to those in the long term care field. The NY Final Rule increases the income threshold for the executive and administrative exemptions based on the location of an employer, similar to the recently enacted New York Minimum Wage changes, as follows: Minimum Weekly Salary For Overtime Exemption Effective FLSA NYC 11 NYC 10 Nassau, Rest of Date or more or less Suffolk & State Westchester 12/13/16 12/31/17 12/31/18 12/31/19 12/31/20 12/31/21 $913.00* $825.00 $787.50 $750.00 $913.00* $975.00 $900.00 $825.00 $913.00* $1125.00 $1012.50 $900.00 $913.00* $1125.00 $1125.00 $975.00 $913.00* $1125.00 $1125.00 $1050.00 $913.00* $1125.00 $1125.00 $1125.00 $727.50 $780.00 $832.00 $885.00 $937.50 $937.50 *On hold pending appeal and/or further rulemaking Thus, the NY Final Rule significantly increases the overtime exemption threshold for New York employers over the next few years. As of December 31, 2017, in order to continue to exempt employees from overtime, employers must verify that each exempt employee will meet the salary threshold depending on the location of the work performed. Two memoranda outlining the Federal and New York State overtime exemptions in additional detail are available here. (continued) leadingageny.org 28