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January 2020 FLSA FAQs

The following are FAQs related to recent updates to the Fair Labor Standards Act (FLSA) from the U.S. Department of Labor. These updates will become effective Jan. 1, 2020.

Q. What is the FLSA?

A. The U.S. Department of Labor’s FLSA is a federal law that determines if a position is eligible for overtime pay for hours worked in excess of 40 in a workweek. According to the FLSA:

  • An exempt position is not eligible for overtime regardless of how many hours per week the employee works. Exempt positions are paid a fixed salary.
  • A non-exempt position is a position in which overtime must be paid if the employee works more than 40 hours in one workweek.
  • Determination of the exemption status is based on two things: the position’s duties and its salary. Before a position can be considered exempt from the FLSA (and not subject to overtime pay), the position must be paid at a certain salary level. The current salary level is $455 per week or $23,660 annually. If the position meets the salary test, then it also must meet a duties test as outlined in the law.
  • Certain positions are always considered exempt from the law regardless of salary. For example, all teaching positions are exempt even if the position’s salary is below the salary threshold in the FLSA.

 

Q. What are the new changes to the FLSA?

A. The U.S. Department of Labor did not change the duties test as part of its recent updates to the FLSA. However, the salary requirements have been updated in the law.

Historically, if a position’s salary was greater than $455 per week or $23,660 annually and the duties test was met, the position was considered exempt. Effective Jan. 1, 2020, the salary requirement will increase to $684 per week or $35,568 annually.

 

Q. When will the changes to the FLSA become effective?

A. The law requires eligible employers to implement the new FLSA salary requirements on Jan. 1, 2020.


Q. What do these updates mean for a non-teaching position that currently is exempt (i.e., not eligible for overtime) and paid below $684 per week or $35,568 annually?

A. For non-teaching positions paid below the salary level, the options to comply with the law are:

  • Increase the position’s salary to the new salary level so the position remains exempt; or
  • move the position to non-exempt status (hourly). The position will be paid straight time for hours worked up to 40 and overtime (1.5 times regular rate of pay) for hours worked in excess of 40 in a workweek.

 

Q. What about positions that are currently exempt (salaried) and paid more than $684 per week or $35,568 annually?  

A. The “duties” tests in the law have not changed. Therefore, positions that are paid above the new salary threshold and are currently exempt are not impacted by the updated FLSA rules. These positions will remain exempt (salaried).

 

Q. How will WVU decide which positions receive a higher salary and remain exempt or become hourly?

A. Supervisors will assess several operational factors to determine the appropriate course of action for a position. For example, supervisors should consider the cost of any potential overtime to the cost associated with moving the current salary to the new threshold. Potential impact to the unit’s budget also will be important to consider as well as the unit’s flexibility to accommodate position’s responsibilities within the typical workweek.

 

Q. If a position changes from a salaried position to hourly, is it considered a demotion?

A. No. Any change from a salaried to hourly position as a result of the updated FLSA rules change will be made to comply with the law and has nothing to do with the value of an employee’s position at the University. The change from a salaried position to an hourly position is merely a change is how the pay is calculated.


Q. If a position changes from salaried to hourly, does it impact an employee’s career advancement opportunities?

A. No. Any change from exempt to non-exempt status does not impact opportunities for career advancement.  


Q. When will employees know if their position’s overtime status is changed due to the new law?

A. The law requires changes to be made no later than Jan. 1, 2020. An employee’s supervisor will notify the employee of any changes to their position as a result of the FLSA updates. It is anticipated that employees will be notified of any changes related to their positions in December.


Q. Are graduate research and teaching assistants and undergraduate student workers impacted?  

A. No. Graduate research and teaching assistants and undergraduate student workers are not affected by these changes.

In accordance with the FLSA, students who engage in research or teach under a faculty member’s supervision in the course of obtaining a degree are considered in an educational relationship (not an employment relationship). Therefore, these students are not entitled to overtime and are excluded. Students who serve as resident assistants, live in the residence halls and advise students in exchange for room and board also are excluded.


Q. What if an employee works part-time and their current salary is less than $35,568 annually? Will they be impacted by this change?

A. Part-time exempt employees must make at least $684 a week to continue in a salaried pay status. If the employee’s salary is less than this amount, then then the position will become non-exempt/hourly.  


Q. How do the FLSA rules for higher education institutions differ from private companies?

A. The FLSA includes several provisions exclusive to higher education:

  • Teachers are excluded from the FLSA requirements if teaching is their primary duty. This includes adjunct instructors, professors and others.
  • Coaches are excluded if their primary duty is teaching, which may include instructing student athletes in how to perform their sport.  
  • Graduate research assistants, graduate teaching assistants and resident assistants are excluded.


Q. How are post-doctoral positions impacted by this change?

A. Postdoctoral researchers in the sciences who do not teach are subject to the new regulations. Postdoctoral positions that primarily teach are excluded from the new regulations and can remain salaried.


Q. Who is excluded from these changes?

A. Faculty and instructional academic staff whose primary duties are teaching will remain exempt regardless of their salaries. Teachers, lawyers and doctors qualify for an exemption as professionals. However, to be properly designated as a teacher, an employee must have actual instructional duties. Those who support teaching activities without actual teaching interaction most likely will be designated as non-exempt.

 

Q. Where can I find more information?

A. Additional details about what is considered time worked under the FLSA (including travel time, training, working outside of normally scheduled hours) can be found on the Classification and Compensation website.