1. FLSA UPDATE 2016 SCASBO FALL CONFERENCE
Thomas K. Barlow
Childs & Halligan, P.A.
November 2, 2016

2. Scope DOL Changes Exempt Salary Threshold Effective December 1, 2016
Review of White Collar Exemptions
FLSA FAQ
Coping Mechanisms

4. New DOL Regulations
Salary threshold for white collar exemptions goes from $455/week to $913/week
“Weekly” vs. annual
Teachers vs. other exempt employees
Escalator Provision
Duties tests unchanged

5. Practical Application
Weekly vs. annual
Limiting overtime
Compensatory time
Properly calculating compensable time
Properly paying overtime

7. Executive Exemption $913 week, salary basis Primary duty -management
2 or more full time subordinates or equivalent
Hiring/firing input
No “percentage” test

8. Executive Exemption Examples
Transportation supervisor, food service supervisor, maintenance supervisor, CFO, department heads, building management (principal, assistant principal)
Potentially – highly paid cafeteria managers, custodial supervisors

10. Administrative Exemption
$913 week, salary basis
Primary duty must be 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;
Exercise of discretion and independent judgment with respect to matters of significance.
No “percentage” test

11. Administrative Exemption Examples
Directors who don’t supervise 2 or more, guidance counselors*, literacy/math coach*
Often attempted, usually unsuccessful
Board secretary
Principal’s secretary
Bookkeeper
Non-MSW social workers
Non-certified “peacekeepers” at school level
Computer technicians who don’t supervise, write code, budget or purchase

13. Professional Exemption
TEACHERS ARE EXEMPT
Non-teachers
At least $913/week
Primary duty = work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the:
Consistent exercise of discretion and judgment;
Advanced knowledge in a field of science or learning; and
Advanced knowledge normally acquired by a prolonged course of specialized intellectual instruction.

14. Professional Exemption Examples
CATE teachers
RN school nurses
Staff accountants who don’t supervise or run the department
Guidance counselors
MSW/LMSW caseworkers
BUT NOT:
Teacher’s aides
ISS/study hall aides
Positions requiring a bachelor’s degree (case worker, parent liaison)

16. FLSA FAQ

17. FLSA FAQ
How do we calculate and pay overtime for those employees who have been rendered nonexempt by the new salary threshold?

18. Options Time and a half or 1.5 hours of comp time over 40 hours
Treat as fixed salary for fluctuating workweek and pay half-time premium

19. Fixed Salary for Fluctuating Workweek
Requirements
- Clear mutual understanding
- Practice over time may be sufficient, policy, sign-off better
- Hours vary from week to week, but salary designed to compensate for all hours worked
- No deductions for weeks < normal work hours

20. Fluctuating Workweek - Methodology
Weekly salary divided by weekly hours
Half-time premium times overtime hours
Effect is lower rate for more overtime worked

21. Example – Fluctuating Workweek
Computer Claire is paid salary of $800 a week
Week 1 – 45 hours
Overtime due = $44.45
$800 / 45 hours = $11.78/hour
$17.78 x .5 = $8.89 HTP
$8.89 x 5 hours = $44.45
Week 2 – 50 hours
Overtime due = $80.00
$800 / 50 hours = $16.00/hour
$16 x .5 = $8 HTP
$8 x 10 hours = $80.00

22. Traditional Method Week 1 – 45 hours
Regular Rate $20/hour ($800/40 hours)
Overtime due $150
$20/hour x 1.5 = $30/hour overtime rate
$30 x 5 OT hours = $150
Week 2 – 50 hours
Overtime due $300

23. Fluctuating Workweek Cons
Requires weekly math exercise
Employees don’t understand it/resent it
More $ in neighboring district?
Hard to transition if you’re using traditional method
Comp time?

24. FAQ (Continued)
We have some people in our District approaching retirement who have huge balances of unused compensatory time. Is there anything we can do to lessen the impact of a big payout when they retire and prevent the accumulation of large comp time balances in the future?

25. FAQ (Continued)
We have a bus driver whose daughter is on the volleyball team. She wants to volunteer to drive the activity bus to away games. Is this a problem?

26. FAQ (Continued)
I have an employee who rides to work with her spouse and starts work half an hour early every day. Does she have to be paid for that time if I tell her that she's not supposed to be working yet?

27. FAQ (Continued)
We have teacher’s aides who work in after-school programs. Are we on the hook for overtime based on the hours they work in those programs too?

28. FAQ (Continued)
Certified teacher wants to drive a bus. Do we have to keep up with hours and pay overtime based on bus driving duties?

29. FAQ (Continued)
Our teacher’s aides do a lot of teaching and some of them have college degrees and are certified. Can we treat them as exempt professionals?

30. FAQ (Continued)
Can we use the “occasional and sporadic” exception to pay a teacher’s aide a flat rate for taking tickets at football games? How about a custodian who cleans up after basketball games?

31. FAQ (Continued)
We have social workers/case managers who have college degrees but we don’t require MSW or LMSW. Can we treat these employees as exempt professionals?

32. FAQ (Continued)
Do school nurses qualify for the academic administrative support exception that allows entry-level teacher salary threshold?

33. FAQ (Continued)
Can/should we add coaching stipends into salary for purposes of determining whether a non-teacher meets the salary threshold?

34. Coping Mechanisms Use comp time Limit overtime hours
Promote/raise those on the edges
Automate timekeeping
Fixed salary, fluctuating workweek
Audit yourselves