The new overtime rule and workers’ compensation

The Labor Department estimates that the new overtime rule, which takes effect January 1, 2020, will affect 1.3 million workers. The new rule raises the minimum salary threshold from $455 per workweek to $684 per workweek. This means that salaried workers who earn less than $35,568 per year will be eligible for time-and-a-half overtime pay if they work over 40 hours, up from the current threshold of $23,660. While the new rule updates the earnings thresholds necessary to exempt executive, administrative, or professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements, it does not alter the white-collar exemptions’ duties tests.

Employers need to make decisions about the compensation packages of exempt employees who earn less than the new weekly threshold of $684, but more than the current threshold of $455,  before year’s end. The options are to increase salaries to the new level, reclassify employees as non-exempt, and structure workloads to preclude overtime hours.

The rule also permits employers to use nondiscretionary bonuses and incentive payments paid at least annually to satisfy up to 10% of the standard salary level.

 In its FAQ, https://www.dol.gov/whd/overtime2019/overtime_FAQ.htm#15 the DOL notes that “if an employee does not earn enough in nondiscretionary bonuses and incentive payments (including commissions) in a given 52-week period to retain his or her exempt status, the Department permits a “catch-up” payment at the end of the 52-week period. The employer has one pay period to make up for the shortfall (up to 10 percent of the standard salary level for the preceding 52-week period). Any such catch-up payment will count only toward the prior 52-week period’s salary amount and not toward the salary amount in the 52-week period in which it was paid. If the employer chooses not to make the catch-up payment, the employee would be entitled to overtime pay for any overtime hours worked during the previous 52-week period.”

The rule also raises the salary threshold for the highly compensated employee exemption  (HCE) from $100,000 to $107,432 per year, but it does not change how employers may use bonuses to meet the salary level component of the HCE test.

How will this affect workers’ compensation premiums? 

While the premium calculation can be more complicated, this simple formula gives an idea of how it is done:

Payroll (per $100)  x  Classification Rate  x  Experience Modifier  =  Premium

What’s important is that in almost all states payroll (which is often referred to as the basis for premium) is actually remuneration, which is much more than payroll. Increasing salaries of exempt workers will increase premiums, based on the employee’s classification. However, the issue of non -exempt workers and increased payroll that results from overtime is more complicated. To understand how the new overtime rule will impact premium, you’ll need to know the rules for treating overtime pay in your state. 

With the exception of four states (Pennsylvania, Delaware, Utah, and Nevada), overtime pay can be reduced to straight time when determining the workers’ comp premium. Many insurance companies define overtime pay as the wages paid at one-and-a-half times the employee’s hourly rate for overtime hours. So, in most states, if a worker makes $20/hr. and is paid $30/hr. for overtime, the company pays premium on the $20, but not the extra $10.

In Pennsylvania, Delaware, Utah, and Nevada, overtime pay is subject to premium and may be added during the annual comp audit process, if not properly projected in your payroll for the year. So, in the case above, the company pays premium on the full $30.

Next steps for employers 

1. Make decisions about the employees who are affected by the new overtime threshold. 
2. Clearly communicate to all employees the new rule. If employees are being reclassified, it is important not only for them, but for those who report to them, to understand why they are being reclassified. Be sensitive to the perception that changing from exempt to non-exempt can be viewed as a negative change in status. Individual meetings to reinforce that the change is based on regulations, not performance, can help.
3. Evaluate your time tracking system and train reclassified employees in its use. An automated time tracking system is critical in ensuring accurate overtime pay. 
4. Assess your telecommuting policies and the ability to monitor hours worked, if telecommuters are being reclassified.
5. Keep adequate records of overtime. In states that allow overtime exclusion for workers’ comp, if adequate records are not maintained, the overtime pay cannot be excluded from the total payroll and you must pay on the entire amount. If the rate of overtime varies, for example, time-and-a-half and double time, be sure the records are distinct, as the adjustment will differ. This information should be in a form that is easily determined by the auditor, summarized by classification on an annual basis.
6. Keep an eye on your projected payroll for your workers’ comp policy. At the year-end of your policy, an audit will determine if you’ve underestimated payroll. To avoid year-end surprises, be as accurate as possible when projecting annual payroll.

It’s important to note that the new rule does not take precedent over more stringent state rules. Generally, businesses must comply with the law that provides the most protection for the employee. Many states have higher thresholds and additional criteria for exempt status than under federal law. Multistate employers should look at compliance on a state-by-state basis.