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The fate of the federal overtime rule remains uncertain, but New York employers need to be aware of state-level changes that spell out salary threshold increases for the administrative and executive exemptions from overtime pay.
The New York State Department of Labor (NYSDOL) on Dec. 28 published an anticipated final rule on those increases, which take effect Dec. 31.
Employers should note that the increases differ based on geographic location—and in New York City the changes are based on employer size.
Hopefully, most employers already had a plan in the works because of the federal rule, said Brett Coburn, an attorney with Alston & Bird in Atlanta.
Had the federal rule gone into effect as planned, the changes in New York wouldn't have been a big deal, Coburn said.
At least initially, all of the state-level increases will be less than those under the now-halted federal rule, which was scheduled to take effect Dec. 1. The federal rule would have raised the exempt salary threshold under the Fair Labor Standards Act to $913 per week ($47,476 annually) from $455 per week ($23,660 annually).
Even if the federal overtime rule does eventually take effect, the state-level increases will surpass it over time.
David Feldman, an attorney with Ogletree Deakins in New York City, said that when there is a difference between federal and New York law, the law that is more favorable to the employee pre-empts the other one.
Therefore, employers in New York must be cognizant of any changes to both federal and state laws and regulations, Feldman added. He noted that employers must also have an understanding of any local or city laws that can affect the workplace, such as the New York City Human Rights Law.
The current statewide exempt salary threshold in New York is $675 per week ($31,500 annually). The increases based on location and employer size will take effect as follows:
These are significant increases for small and large companies alike, Feldman said. He noted that New York's fissured wage and hour laws are making it increasingly difficult for employers in the state.
Coburn said the simplest solution for employers operating in multiple locations would be to go with the highest salary threshold. But employers need to balance the cost of their decision with the ease of administration, he added.
Increases to the minimum wage in New York based on location and employer size will also take effect Dec. 31.
As with the changes under the federal rule, employers need to take a look at their exempt workforce and determine if any worker earning under the applicable state threshold should either be converted to nonexempt status or given a raise to comply with the law.
This is not a simple cost-benefit analysis, according to Feldman.
"Every workplace is unique," he noted. "Employers need to understand that it is not only about knowing the law and the regulations that enforce the law, it is also about knowing how to apply the law and the regulations."
[SHRM members-only HR Q&A: I've heard that some employers are now legally required to communicate wage changes to employees. Can you tell me more about this?]
Some employees may welcome a change to nonexempt status so they can earn overtime wages, and others may view a status change as a demotion when they have to start clocking in and out.
"What may be the solution for one workplace may prove problematic for another—it depends on the workplace and the individual," Feldman added.
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