The U.S. Department of Labor Is About To Commit “White Collar” Crime

A new labor rule will double the minimum salary for overtime exemption. It will put millions of salaried workers back on the time-clock and create additional administrative burdens on employers. 

by Michael Nossaman

One of the rewards of working is getting promoted. It signals that your personal effort has been recognized and someone else sees value and potential in your contribution to the enterprise.  Often a promotion brings the title of manager or supervisor, along with other perks such as a raise, not having to punch the clock, flexibility about personal time, and maybe even a year-end or performance bonus.

Granted, you might be working more hours for just a little more pay, but the realization that you are moving up the ladder with the status of a “white collar” job is your inspiration to keep striving for even more. You’re on your way to transforming from a job to a career.

Those proudly earned emblems of status and upward job mobility will be yanked from potentially millions of U.S. workers when the new overtime rule proposed by the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) goes into effect later this year.[1]

The overtime rule establishes the amount of minimum guaranteed salary an employee must be paid and the duties they must perform in order to be exempt from receiving overtime pay. It is a rule that defines quantitatively and qualitatively what it means to be “white collar.”

Since 2004, the salary threshold for being considered an exempt employee is $23,660, or about $11.38 per hour, based on a 2,080 hour year (52 weeks X 40 hours/week). If you make more than that in base salary-and perform bona fide exempt duties-you do not need to clock in and out and you don’t get paid overtime if you work more than 40 hours a week.

The New Rule

As it stands now, the forthcoming revision to the exempt salary level will be pegged annually to either inflation (CPI-U) or the 40th percentile of all salaried U.S. workers.[2]  In 2016 that number is forecast to be $970 per week or $50,440 annually; more than double the current amount.  Anyone making less than that, even if they satisfy all the requirements of the “duties test,” will revert back to an hourly pay basis and must be paid overtime for hours worked in excess of 40 per week.  (In some states overtime pay is required if you work more than eight hours per day.)

Raising the exempt threshold is not unprecedented. It doesn’t happen often, only seven times since first established in 1938, and most recently in 2004.  But when it does, it is a shock to the employment system.  It will be no different this time.  Until now, arriving at the amount of minimum salary increase required a convoluted calculation of regional differences in average salary to arrive at a one-size-fits-all number.  The DOL believed that the old system of calculating the increase was flawed, and that the 2004 salary level was too low.  This time it devoted considerable effort and energy to devise a better method and make up for the perceived 2004 shortfall.  The WHD admits that the new method is not as good as it might be, but is better than the old one for two reasons: salary level increases will be incremental on an annual basis, thus eliminating major shocks, and it is pegged to the more predictable measurement: inflation or 40th percentile of all salaried workers; the simplest method. [3]

The overtime rule was concretized in the 1938 Fair Labor Standards Act (FLSA) that established, among other things, the 40 hour work week, known as regular time, and overtime. Every hour beyond 40 in a week is overtime and must be paid at the rate of one and one-half times the regular time rate; the “overtime premium.”

The Tests

However, when an employee’s fixed salary exceeds a certain threshold – currently $455 per week or $23,660 annually – and performs duties defined as Executive, Administrative, or Professional, (EAP) – “white collar jobs” – they are exempt from overtime pay.

There are three tests for exemption: Guaranteed Fixed Salary (Salary Basis), Minimum Salary (Salary Level), and Duties.  If salary can be reduced due to variations in quantity or quality of work, or is below the dollar minimum, the employee is non-exempt and duties are irrelevant.  If guaranteed salary is above the minimum, duties are relevant.

The Salary tests are simple: pay a fixed guaranteed salary, above the minimum.

The Duties test is not so simple. Below are the current DOL General Rules (Duties) for EAP employees.

Executive Employees
Compensated on a salary basis at a rate of not less than $455 per week.

Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

Who customarily and regularly directs the work of two or more other employees; and

Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Administrative employees
Compensated on a salary or fee basis at a rate of not less than $455 per week.

Whose primary duty is 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; and

Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Professional employees
Compensated on a salary or fee basis at a rate of not less than $455 per week.

Whose primary duty is the performance of work:

Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or

Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

There is some, but not total, flexibility in the type and amount of non-exempt work that EAP employees are allowed to perform. For example, a manager may perform non-exempt duties as long as his or hers primary duty is management. EAPs are also allowed to perform manual labor in the event of an emergency that poses a risk of injury or substantial loss to the enterprise.

In 2015 when the DOL issued the Notice of Proposed Rule Making (NPRM) it only proposed changes to the minimum salary levels. It requested comments and suggestions about duties and time spent at non-exempt work but did not propose duties rules changes.  That is an important point because, by law, federal agencies are required to announce proposed rule changes in advance and allow time for comment before they can be enacted.[4]  However, the department may attempt to overcome this hurdle administratively, so a change in the tests will not be an unexpected surprise when the final rule is announced in 2016.  Nevertheless, any changes to the duties tests will trigger a blizzard of lawsuits.

One such change in the rules pertains to the amount of time that exempt workers spend performing non-exempt work and still maintain exempt status. Currently, there is no bright-line between time spent doing non-exempt and exempt work.[5]  In the case of Executives, as long as the exempt manager has bona fide “boss” duties, the exemption is valid.  Administrative and Professional exemptions have different standards. (Outside sales and certain computer jobs not consider EAP, can also be exempt.)

As an employer, you would be wise to educate yourself or seek competent counsel about the current rules governing all three principal categories of EAP employees in order to properly prepare for the changes, protect yourself from increased and aggressive DOL enforcement efforts already underway, and the rising number of wage and hour class action lawsuits.

There are two DOL documents that are especially instructive and helpful in determining exemptions and hours worked: Title 29 CFR Part 541: Defining and Delimiting Exemptions[6] and Title 29 CFR Part 785: Hours Worked.[7]  Both are written in reasonably plain language.  The Hours Worked document is particularly relevant if you choose to revert currently salaried employees back to hourly employees.  It explains in detail what constitutes work for which they must be paid. There are links to these documents in the Endnotes.

The Impact

The new rule will cause a great deal of discomfort and consternation among many currently exempt employees. Some will like it because they might make more money when paid for overtime.  Some will like it because they won’t have to work extra hours if you won’t or can’t pay overtime.  Many will not like it because they might make less money, and lose some exempt employee benefits.  For others, it may be pay neutral but their working arrangement with you will be different.

Here are five options you have as an employer:
1. Increase salary to the new minimum of $50,440, subject to the Duties Test.
2. Limit hours worked to 40 per week.
3. Hire more full-time employees.
4. Hire part-time employees at the regular rate.
5. Pay the overtime premium.

You might also investigate the use of the Fluctuating or Alternative Workweek. That arrangement allows you to cover assignments requiring long days, weekends, and holidays with your regular full-time staff but doesn’t solve the overtime problem. Plus, you must work out the details of this arrangement in advance and put it in writing, keep detailed and accurate records, and live faithfully by the policy; no exceptions. The WHD will audit your records to ensure you are in compliance.

None of the above options are particularly desirable for you or your exempt employees, unless you have been abusing the exempt status in order to work them to death and pay them very little. (The current minimum exempt annual salary of $23,660 is below the poverty line for a family of four).

Option 5: Pay the overtime premium is the one that many employers are considering because it allows them to pay the same total amount to employees whose current salary is below the new minimum and are working more than 40 hours per week. However, to make this work, you must reduce the regular time hourly rate to compensate for the overtime hours at time-and-a half. This method is pay neutral; total wage compensation does not change, but the method of payment does.

Here’s how a wage reset method works. If you are paying a manager $30,000 per year salary, their calculated regular time hourly rate is $14.42. ($30,000 / 2,080 hours [40 hours per week x 52 weeks]). Their overtime hourly rate is $21.63. If that manager works 10 hours per day, those extra 520 hours per year will add up to roughly $11,250, and total pay will increase to $41,250. Ouch! And you are still $9,150 below the new salary minimum.

To continue paying this employee $30,000 per year and working him or her 10 hours per day, on an hourly basis you will need to reset (reduce) their regular time hourly rate to $10.50 per hour plus $15.75 per hour for every hour of overtime. (2,080 x $10.50 [$21,800] + 520 x $15.75 [$8,190] = $29,900).

If an employee is working 10 hour days, and you intend to keep them salary neutral, you will need to reduce their regular time hourly by 27.2 percent in order to pay them for the extra two hours a day of overtime. That percentage decrease applies to any current base salary amount if the employee works just two hours extra per day or 20 hours per week.

If your employee is working 12 hours a day, you will need to reduce their current regular time hourly rate by 42.8 percent to remain salary wage neutral. That percentage decrease applies at any salary level for 12 hour days.

The hourly wage reset/reduction method only works if the reset hourly wage remains above the federal, state, or city minimum wage, whichever is highest.

Tough Questions

Your $30,000 a year managers have probably already figured out on their own that their effective hourly rate for the 2,600 hours a year they are now working is only $11.54. And you are now telling them they are going back on the clock and reducing their hourly pay to $10.50?  You are going to need to plan ahead and muster all your sales and persuasive communication skills for that conversation.  And be ready for some tough and pointed questions.

“Why don’t you just pay me for the overtime I work now? That seems fair.”

“Will I really get all that overtime? Can you guarantee it?”

“On salary, you allowed me some personal time off. Does this mean I won’t get time off or get paid for it?

“On salary, I get some extra benefits: my bonus, profit sharing, and health care insurance. Will I still get those?

“You told me I was in the management development program and now you’re putting me back on the clock. Am I still on that career path or has that gone away too?

“You said you were going to send me to some training programs. Do I still get to go and will I get paid for that time?  (The answer to that question is Yes…by law.)

“I’ll work off the clock if you’ll pay me at a higher hourly rate and I can still have some occasional time off.” (The answer to that question is ABSOULTELY NOT!)

What other questions would you ask if this wage reset arrangement was presented to you?

More troublesome could be the conversation the employee has with himself…and a spouse. Those extra hours worked for you are hours away from home, for $11.54 per hour.

Courtroom Drama

Worse yet, your manager might start to question why he wasn’t paid overtime all along, and was he entitled to it? This might be the time for him to file a claim for back wages or call a lawyer, especially if the title of manager was just that, a title, and his actual work did not comply with the duties test.

If that is the case, you might be billed for two to three years of back wages, fines, penalties, interest, possible criminal action, and liquidated damages-customarily double the amount of back wages.[8]  The WHD estimates that 70 percent of U.S. businesses, in some form, are in violation of the Fair Labor Standards Act (FLSA).[9]  The WHD wins most of the wage claim cases it files, and it’s bringing more every year.

In 2015 there was a record number of nearly 9,000 wage and hour lawsuits file by trial lawyers, way up over previous years, and is expected to increase more this year.[10]  That is not the total number of federal and state wage and hour claims; it is the number of cases that actually made it to federal court!  There were thousands of other claims that were resolved out of court, the majority of which were the result of an employee claim.

If a case does make it to court, and the employer loses, in addition to paying back wages, fines, penalties, interest, and damages, some judges will tack on plaintiff attorney fees, especially if the wage and hour violations were willful or egregious. Those fees could dwarf the actual and liquidated damages employers pay for the wage violations.

One last point, if you find yourself ensnared in a WHD misclassification enforcement action, in or out of court, you are likely to also be visited by the Internal Revenue Service about back taxes, and your state agencies about state wage taxes and worker compensation payments. They are all talking and sharing information.[11]

The Other Exempt Employees

This article focused primarily on Executive employees, who actually manage and perform security duties. It does not specifically address in any detail exempt Administrative employees, exempt Professionals, or Highly Compensated Employees (HCEs).

Administrative employees have a different duties test. If you have salaried administrative or back office employees, you are advised to learn about those duties tests because the penalties and enforcement effort for administrative employee misclassification are the same as for the other exempt categories of employees.

It is not likely there are many employees in the security industry who would qualify as exempt under the WHD definition of Professional. Although we are proud to be, and prone to calling ourselves, security professionals – trained, experienced, and highly qualified –  the WHD has a different definition of Professional; higher education being one such measurement.  Professionals include doctors, lawyers, scientists, writers, artists, and performers.  Concentrate on meeting the duties test for Executives, not Professionals.

HCEs whose total compensation (under the proposed new rule) is above $122,000 and perform office and non-manual labor are presumed to satisfy the duties test. A word of warning, however, satisfaction of the duties test is on a case by case basis.  Salary alone is not a bright line.  For example, an executive protection specialist earning a salary above the HCE minimum must also pass the duties test.  And title alone, or mere supervision, is not sufficient ground for exemption.  Proceed with caution.

What To Expect?

Like it or not, the new wage rule is coming and will be a shock on several levels If you are forced to re-classify salaried employees as hourly employees. It will be a costly and awkward situation but ignoring it could cost you a lot more.

Some employees will feel they are losing something they worked hard to achieve.

They may believe that you betrayed them, lied to them, and broke a promise.

They may be disillusioned and disappointed.

Some may feel like “checking out” during working hours, others may just quit.

Some may file wage claims against your company.

On the positive side, some employees might welcome the change. They might make less money but appreciate reclaiming those extra hours more than the extra money.

Don’t Hope For Help

Even if the salary level in the final rule is lower than the proposed $50,440, it will still be much higher than the current level and will cause the same amount of pain. And there is very little chance that Congress will be able to block adoption of the new rule.  They will attempt to disapprove the new rule but the odds of overturning it are not good.  In the 20 years since Congress adopted the current legislative process for overturning a new agency rule it has been successful just once.[12]  Additional legislation has already been introduced but, it too, has little chance of success[13]

Next Steps

Now is the time to create your plan to comply with the new rule. Once the Final Rule is announced in July 2016, you will only have 60 days in which to comply.[14]

Start with a duties audit of all your salaried employees; the salary tests are self-evident. Thoroughly review the Duties Tests and compare them to the actual duties your exempt executive and administrative employees currently perform.  Extreme diligence in these examinations is required.  You can be sure that if the WHD does a similar audit of your exempt employees, its investigators will be extremely diligent in searching for any misstep in your classification rationale.  Moreover, make certain that what you have in writing is what is actually done.  If you say an employee’s duties include doing “boss” things, make sure you detail what those duties are and have records of them actually doing those things.  A job description is not sufficient.  WHD investigators will check your claims and demand documentary evidence.  Punishment for misclassification missteps increases if the WHD proves that you willfully violated wage and hour laws.  Investigators will be looking for evidence that you did.  Ignorance and negligence are not defenses.  The burden of proof is on the employer.[15]

Next, you should decide in advance which of the five options enumerated above – or others – will be the best one for each of your exempt employees. You may find that you can use different options for different employees but don’t put off those decisions. Give yourself plenty of time to test your various options.  You may want to have a back-up plan if an employee resists or rejects your preferred option choice.  What is Plan B?  That will depend on how much latitude you have and how much you want to keep a particular employee.

The Intersection of Reality and Ideology

It is no secret that wages in the U.S and around the world have stagnated over the past decade or so in spite of the fact that global productivity has increased significantly due mainly to advances in technology. On the other hand, the people running the U.S. Department of Labor believe that one major cause of low wages is what they refer to as “wage theft,” principally through misclassification; classifying workers as “white collar” exempt or as independent contractors.

As for exempt employees, the new overtime rule is best described as white collar crime. And the DOL stands a good chance of getting away with it.

While writing regulations that ensure the fair treatment of workers is a laudable endeavor, especially for those in low income jobs, the new rules that the DOL propose will more likely hurt the very people these measures are intended to help. The DOL estimates that in the first year that the new rule is in effect it will increase the wages of nearly 5 million workers and put as much as $1.3 billion in their pockets. [16]

What is more likely to happen is that many employees will actually see their paychecks decrease because employers will limit workers to 40 hours a week since it will be cheaper to hire additional low wage full-time workers or part-time workers than to pay the overtime premium.

Among the other losses that currently exempt employees will suffer are flexibility in their working hours, performance incentives and bonuses, other benefits and perks, and even career advancement opportunities.

It’s not overly dramatic to state that a lot of workers are going to be very unhappy about going back on the clock. Who will they blame?  Their employer.  This will have a terribly demoralizing effect on many people.

The DOL also estimates that the additional administrative and record keeping costs to employers will only be roughly $250 million annually; a figure that most experts believe is grossly understated.[17] Businesses will be forced to redefine – and possibly limit – what a job entails and what an employee can and cannot do, and keep meticulous wage and duties records to prevent running afoul of the government or attracting a hungry trial lawyer.  Even a small or inadvertent mistake could be the end of a business.

The calculus the DOL used to describe the problem and devise a solution brings to mind the epithetical description of government specifications: measure it with a micrometer, mark it with a grease pencil, and cut it with an axe. The new rule is a perfect example of a head-on collision between the messy reality of business owners and the finely polished ideology of bureaucrats.

Indeed, the solution will exacerbate the problem it was designed to solve. Instead of raising the reward of working, it will cost good jobs, drive wages down further, choke off career advancement opportunities, and raise the cost of doing business.

Michael Nossaman is the founder of the Protective Security Council.


[1] Notice of Proposed Rule Making (NPRM) 38516 Federal Register / Vol. 80, No. 128 / Monday, July 6, 2015 / Proposed Rules.

[2] The proposed new salary level is likely to be challenged in Congress under the Regulatory Flexibility Act (RFA)The reasoning is that economic impact of the proposed salary level increase is far greater than the DOL estimate.  Invoking the RFA would delay implementing the new rule until a more thorough “impact study” is done.  This would delay, but not necessarily block the new rule.

[3] Changing the method for adjusting the salary level annually may be unlawful under the Administrative Procedures Act of 1946(APA).  The APA requires that agencies promulgating rule changes with an economic impact in excess of $100 million (considered a “major rule”) must use the Proposed Rule Making process.  The proposal to adjust the overtime exempt salary level annually is sure to be challenged on this basis in Congress and the courts.

[4] In the 2015 NPRM, the DOL asked for comments and suggestions about the “duties tests” but the NPRM did not propose any changes to them.  Any duties tests changes promulgated by the DOL will certainly be challenged on the basis that the agency did not abide by the Administrative Procedures Act of 1946.

[5] The NPRM asked for comments about adopting a duties test provision similar to the California Rule which is substantially different from the current federal test.  In California, in order to qualify for exemption, the employee must spend more than 50 percent of their time on exempt duties.  The federal rule does not have a minimum time spent on exempt duties, only that an exempt employee’s “primary duty is management.”

[6] 29 CFR Part 541 Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. Wage and Hour Division – Department of Labor.  April 23, 2004

[7] 29 CFR Part 785 Hours Worked. Wage and Hour Division – Department of Labor.  May 2011

[8] Investigators from U.S. Department of Labor’s Wage and Hour Division (WHD) found that a Hawaii security company failed to pay security guards legally required overtime in violation of the Fair Labor Standards Act (FLSA).  The firm did not pay their guards time-and-a-half their regular rates of pay for all of their hours worked in excess of 40 in a workweek. The employer also paid a number of guards on a salary basis and incorrectly considered them “exempt” from overtime requirements.  Under the terms of a consent judgment filed with the U.S. District Court for the District of Hawaii, the company, its president, and a manager will pay $57,785 in unpaid overtime wages plus an additional and equal amount in liquidated damage, totaling $115,570 to 65 employees.

[9] “Some 90 percent of employment class actions are wage and hour cases,” and “the DOL estimates that 70 percent of employers are violating the FLSA in some way.”  “Under the Obama administration, Secretary of Labor Thomas Perez and Wage and Hour Division Administrator David Weil have been committed to stepped-up enforcement.” “Proposed Overtime Rule Puts Focus on Compliance.” Society for Human Resources Management.

[10]  “When monthly 2015 civil filings of this type are compared with those of the same period in the previous year, their numbers were up 14.7 percent.  FLSA civil filings for August 2015 are higher than they were for the same period five years ago.  Overall, the data show that civil filings for this type are up 20.5 percent from levels reported in August 2005.” “Fair Labor Standards Act Lawsuits Poised For Record High.” Syracuse University Transactional Records Access Clearinghouse (TRAC)

[11] The U.S. Department of Labor has a Memorandum of Understanding (MOU) with the Internal Revenue Service to share and exchange information about wage and hour violations, especially employee misclassification.  The DOL also has similar information sharing MOUs with at least 28 states.  These MOUs serve as a pipeline of information about wage violations.  An action by one state or federal agency is a potential trigger for other agencies to investigate.

[12] For 200 years, Congress could veto agency rules with a simple majority vote in both houses.  It was a tactic known as the legislative veto.  In 1983 the U.S Supreme Court decided that practice was a violation of the separation of powers.  In response, Congress passed the Congressional Review Act of 1996.  To void the proposed DOL rules change, Congress has 60 days to pass a “resolution of disapproval” and present it to the president.  The president can sign the resolution, in which case the rule is void, but is not likely since it was his administration that proposed the new rule.  Or he can veto it and the rule becomes law.  To override a veto requires a two-thirds majority vote in both houses, also not likely because the minority party in the Senate will filibuster.  If, however, as expected, the final rule is not released until July, the Congress may claim that the 60 day period refers to legislative days, not calendar days, and there is not sufficient time remaining in the current legislative session to pass a resolution; on or about May 18, 2016, there are only 60 legislative days remaining. If Congressional opponents to the rule can prevail on this point, the rule adoption would be held over to the next session, and a new executive administration would reconsider the rule.’0E%2C*P%5C_%3D%22P%20%20%0A

[13] In a largely symbolic measure, on March 17, 2016, Republican lawmakers opposed to the DOL rule change filed legislation in the U.S. House and Senate to block it.  The “Protecting Workplace Advancement and Opportunity Act” would, among other things, void the new rules, and bar the DOL from adopting automatic adjustments of the minimum salary level.  There is no chance that this law will be enacted this year. H.R. 4773 S.2707

A day earlier, Senate and House Democrats introduced competing legislation: the Wage Theft Prevention and Wage Recovery Act which would further increase employer liability and penalties for wage and hour violations. These bills will not progress far in the current legislative session. H.R.4763 S. 2697:

[14] On Feb 17, 2016, DOL Solicitor of Labor Patricia Smith announced at an American Bar Association conference that the white-collar exemption regulations will be published in July, with an effective date 60 days after publication.

[15] On March 22, 2016, the United States Supreme Court affirmed a $5.8 million dollar judgment against Tyson Foods Inc. in a class and collective action filed by workers claiming uncompensated donning and doffing time.  Because Tyson Foods did not have a record of time employees spent donning and doffing equipment, the workers’ expert averaged the time it took to complete the donning and doffing activities and then used those estimates to prove class liability and damages.  A jury had awarded the workers $2.9 million in damages, with a liquidated damages award increasing the final judgment to $5.8 million.  This was a case where reliance on statistical analysis was found to be permissible in order to fill an evidentiary gap created by Tyson’s failure to maintain adequate records. “Supreme Court Upholds $5.8 Million Judgment Based on Statistical Analysis.”

[16] Notice of Proposed Rule Making (NPRM) 38516 Federal Register / Vol. 80, No. 128 / Monday, July 6, 2015 / Proposed Rules.

[17] Notice of Proposed Rule Making (NPRM) 38516 Federal Register / Vol. 80, No. 128 / Monday, July 6, 2015 / Proposed Rules.


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About Michael Nossaman 39 Articles
Michael Nossaman is the Protective Security Council founder.

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