Salary and wellness and tips, oh my!

Government agencies release Spring agenda

Posted May 11, 2018

Twice per year, the federal government agencies are required to publish their plans regarding regulatory activities. Since the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) are two of those agencies, employers might be interested in what might be coming down the road in the not-too-distant future.

FLSA salary level

The DOL intends to issue a Notice of Proposed Rulemaking (NPRM) to determine what the salary level should be for exemption of executive, administrative and professional employees. In May 2016, the DOL published a final rule revising its overtime exemption rules for exempt employees. The revision raised the minimum salary threshold from an annual salary of $23,660 to $47,476. The DOL was sued over the revisions, legislation to delay the rules was introduced, an injunction put a hold on the rule, and the DOL went back to the drawing board, particularly in regard to the salary level.

A new NPRM is scheduled for January 2019.

Wellness programs

On May 17, 2016, the Equal Employment Opportunity Commission (EEOC) published final rules regarding whether employer wellness programs discriminated against people with disabilities. The agency was sued, however, and the EEOC was ordered to reconsider its regulations under the ADA related to incentives and employer-sponsored wellness plans. The case also involved the Genetic Information Nondiscrimination Act (GINA). In accordance with the court’s ruling, the EEOC will consider and take actions to cure defects in the rule.

The new NPRMs (one under the ADA and one under GINA) are scheduled for January 2019.

Tip pooling

The FLSA currently allows employers to take a partial tip credit (tip credit) against its minimum wage payment obligation to a tipped employee based on tips received and retained by the employee. Congress, as part of the recently passed FY 2018 Consolidated Appropriations Act (budget bill), amended the text of the FLSA with respect to tips. The DOL’s Spring 2018 Notice of Proposed Rulemaking indicates that the agency will withdraw its 2017 NPRM and propose to align its regulations with this recent statutory amendment.

The new NPRM is scheduled for August 2018.

Regular rate for OT

Under the FLSA, employers must pay covered employees overtime (OT) at least one and one-half times their regular rate of pay for hours worked in excess of 40 hours per workweek. The employee's regular rate of pay is defined in the FLSA. The DOL proposes to clarify, update, and define regular rate requirements.

The NPRM is scheduled for September 2018.

Hazardous occupations for minors

The FLSA prohibits employers from having 16- and 17-year-olds to perform work in various hazardous occupations, or to work during certain hours. The provisions include a list of occupations found to be particularly hazardous or detrimental to the health or well-being of such minors. The DOL’s nonagricultural regulations provide limited exemptions from the hazardous occupations for apprentices and student learners who are working under certain conditions. The DOL will consider whether certain HOs as well as the conditions that apply to the employment of all apprentices and student learners in hazardous occupations, should be updated to reflect the current economic and work environments. This change could require employers to update their FLSA poster, which contains information on child labor.

The NPRM is scheduled for October 2018.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.


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