Who Is Excluded From the FLSA’s Minimum Salary Requirements?

Executive, administrative and professional employees who meet the FLSA’s job duties and salary basis criteria are exempt from the act’s minimum wage and overtime pay provisions. Per the FLSA, these employees must be paid no less than $455 per week on a salary basis. However, the following positions can be exempt without having to fulfill this standard salary basis test:

Certain computer professionals can be paid either the minimum salary requirement of $455 per week or on an hourly basis of at least $27.63 per hour.

Business owners who are employed in a bona fide executive capacity, own a minimum of 20 percent equity interest in the company where they are employed and are actively engaged in the management of the business are exempt from the FLSA’s salary basis test.

Teachers are exempt from the salary basis test if their primary duty involves teaching, tutoring, instructing or lecturing in an educational establishment. This includes:

  • Regular academic teachers.
  • Kindergarten and nursery school teachers.
  • Automobile driving instructors.
  • Teachers of gifted or disabled children.
  • Certain music instructors.
  • Home economics teachers.
  • Teachers of people in skilled and semi-skilled occupations.

Outside sales employees are exempt from the salary basis test if their primary duty revolves around either of the following:

  • Making sales.
  • Obtaining service orders or contracts.

These primary duties must be customarily and frequently performed away from the employer’s place of business.

Employees who are licensed to practice — and are actually practicing — law or medicine, or any branches of these professions, are excluded from the salary basis requirement. This includes employees who hold academic degrees for the general practice of medicine and are working in a related internship or resident program.

Employees in the motion picture producing industry do not have to be compensated on a salary basis if their base rate of pay meets a specific amount, as defined by the FLSA. As of Dec. 1, 2016, the minimum base rate of pay is $1,397 per week, excluding board, lodging and other facilities. Starting on Jan. 1, 2020, and every three years after that, the base rate of pay will be adjusted.

Administrative employees in educational establishments can either be paid a salary or fee of at least $455 per week or a salary that at least equals the starting pay for other teachers in the same educational institution.

Employees working in American Samoa for a nonfederal employer are subject to a lower salary level requirement — which is 84 percent of the standard minimum salary.

All of the above-stated employees do not have to meet the standard salary basis test, which requires a weekly salary of at least $455. But they are exempt provided they satisfy all other FLSA requirements for their position.

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Inclement Weather and Your Payroll Obligations

Hurricanes, storms, tornadoes, blizzards, floods and other weather-related disasters can cause inclement weather closures. But even if one of these calamities causes your business to close, your employees must still be paid on their next regularly scheduled payday if they did any work during the pay period.

To ensure accurate payment, you’ll need to take federal and applicable state laws into consideration.

Nonexempt Employees and Inclement Weather

The Fair Labor Standards Act (FLSA) says that employers must pay nonexempt employees for all hours worked. Therefore, you do not need to pay these employees for business closures, including those caused by inclement weather. However, if a nonexempt employee shows up and works for two hours before your business closes due to inclement weather, he or she must be paid for two hours for that day.

Under the FLSA, you can require that nonexempt employees use their available paid time off to cover time missed due to inclement weather. However, some states do not allow employers to mandate that employees use their accrued PTO as a substitute in these instances, so be sure to check your state’s stance on this issue.

Also, some states have “reporting time” pay laws, which require that employers pay nonexempt employees for a minimum number of hours if they arrive at work as scheduled but are sent home early.

Exempt Employees and Inclement Weather

According to the FLSA, employers must pay exempt employees their full salary for any workweek in which they perform any work. The FLSA permits certain deductions to be made from exempt employees’ salaries, but business closures aren’t one of them. Therefore, if your business closes for less than one week due to inclement weather, exempt employees must receive their full salary for that week if they did any work at all during that week.

You do not have to pay exempt employees if the business closes for the entire week and they performed no work during that week.

As is the case with nonexempt employees, the FLSA allows you to require that exempt employees use their accrued PTO for inclement weather closings. But, as stated, you’ll need to check state law, since not all states allow this substitution.

With regard to exempt employees who have exhausted their PTO, you must still pay them their full salary for the workweek if they do any work during that time. But you don’t have to pay them anything if they perform no work for the week and have no available PTO to cover the missed days.

Paychecks don’t have to be delayed because of inclement weather

You can’t control the weather, but you can take measures to ensure your employees are paid on time when disaster strikes. A large majority of U.S. workers are paid by direct deposit, so making sure paychecks are handed out is moot. Offer this service if you aren’t doing so already, and encourage employees to take advantage of it.

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Do You Know Your Turnover Rate?

Employee turnover is the percentage or number of employees who leave a company and are subsequently replaced. Industry experts put the cost of replacing an employee at somewhere between 50 percent and 60 percent of the departing employee’s salary. This can take a toll on your profit margin, which is why calculating and controlling turnover must be a priority.

Calculating turnover

According to the Society for Human Resource Management, you can calculate the turnover rate by taking the number of separations during a month divided by the average number of employees multiplied by 100.

Here it is as a formula:

Number of Separations / Average Number of Employees x 100 = Turnover Rate

Before you attempt to calculate your turnover rate, make sure you know your employee headcount, which is the total number of employees on your payroll, including full-time, part-time and temporary employees plus employees who are on leave or are temporarily laid off.

Also, you’ll need to run headcount reports periodically throughout the month, such as weekly or at the start, middle and end of the month. This is important because the reports will probably differ if you’ve had terminations at varying times throughout the month — and this will affect your average number of employees and your turnover rate.

To arrive at your average number of employees, add up the headcounts from each of the reports you ran throughout the month and then divide that sum by the number of headcount reports used for the month.

Then, determine how many employees have left the company throughout the month. Divide that number by the average number of employees and then multiply the result by 100. Voila! You have your turnover rate.

But how does it compare to others in your industry?

Reviewing BLS turnover data

The Job Openings and Labor Turnover Survey (JOLTS), conducted by the Bureau of Labor Statistics, provides information on job openings, hires and separations based on industry and geographic region. You can obtain the total number of separations and turnover rate for your industry via the JOLTS report, and then see how your company’s turnover rate measures up. The report also breaks down separations according to quits, layoffs and discharges by industry and region; therefore, you can benchmark using those variables.

If your turnover rate is lower than the average in your industry, your employees are probably content. But if your turnover rate is higher than the average in your industry, you may want to revisit your retention strategy. In our current high-employment environment especially, it’s important to keep the turnover rate low so you aren’t scrambling through a limited pool of potential employees.

 

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Can You Make Direct Deposit Mandatory?

In 2016, the National Automated Clearing House Association (NACHA) reported that 82 percent of U.S. employees are paid by direct deposit, jumping from 74 percent in 2011. Clearly, direct deposit is on the rise.

But you may be surprised to learn that, according to the NACHA survey, 64 percent of direct deposit users “utilize the service because their employer encourages or requires it.” Further, 37 percent of those who don’t use the service say it’s because their employers do not offer it. The first statistic tells us that some employers actually require direct deposit. But can you? Read on to find out.

Federal Law on Direct Deposit

The Electronic Fund Transfer Act (EFTA), also known as federal Regulation E, permits employers to make direct deposit mandatory, as long as the employee is able to choose the bank that his or her wages will be deposited into.

Alternatively, employers can choose the bank that employees must use for direct deposit. But in that case, the employer must also provide employees another means of payment, such as cash or paper check. The employee can then decide whether to go with direct deposit at the bank of the employer’s choosing or with the other means of payment.

State Law on Direct Deposit

In some states, an employer can make direct deposit mandatory, provided certain stipulations are met. For instance, employers in Kansas, Indiana, Texas, Missouri and South Carolina can require employees to accept direct deposit, but the employer must provide another payment method — such as payroll card, cash or check — to employees who do not have a bank account.

In many states — including California, New York, New Jersey, Florida, Vermont and Illinois — employers must obtain written permission from employees in order to pay them by direct deposit. A good rule of thumb is to require written authorization from the employee, even if state law doesn’t say to.

In some states that allow employers to require direct deposit, the rules are very specific. For example, in Utah, an employee cannot refuse payment of wages via direct deposit if:

  • In the prior year, the employer’s annual federal payroll tax deposits amounted to at least $250,000, and;
  • At least two-thirds of the employer’s workers are being paid by direct deposit.

At the very least, the state may adopt the provisions of Regulation E. If the state extends additional protections to employees, the employer must use the law offering the employee the most benefits. And if the state does not have laws on direct deposit, federal law applies.

You can determine your state’s stance on direct deposit by examining its wage payment statutes, which may also require that you give employees a pay stub each time they are paid — whether by direct deposit, check, cash or payroll card. Of course, this is just a summary of complex state rules, which may contain additional provisions and exceptions, and also which can change frequently. Be sure to get professional advice on the current rules in your jurisdiction before implementing a policy at your business.

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Fully Insured Versus Self-Funded Health Plans

There’s more than one way to fund health insurance. Below are two of the key options.

Fully insured

A fully insured health plan is purchased through an insurance carrier. Typically, the process is as follows:

  • The employer negotiates the best rates possible with the insurance carrier.
  • The employer agrees to pay a monthly premium to the insurer; the monthly premium is based on how many employees are in the plan.
  • The employee pays for their insurance premiums via payroll deductions and is responsible for any copayments or deductible amounts, as outlined in the policy.
  • The insurer assumes all legal and financial risks and pays all medical claims.

Since all claims are managed by the insurance carrier, the employer has more time to focus on its business. Also, costs are fairly predictable. Unless the number of employees enrolled in the plan changes, the employer’s premium rate remains fixed throughout the contract year.

However, premium rates can change drastically at the start of the next contract year if the insurance company finds that it will be at a financial disadvantage.

For example, an employee’s out-of-pocket maximum is $7,000, but they accumulate $50,000 in medical bills for the year. The insurer cannot increase your premium during the contract term because it agreed to pay all claims for that period. What it will do at the start of the next contract year is hike your premium based on incurred medical claims.

Also, insurers often increase employers’ premium rates at the start of the contract year if the cost of providing health care services is likely to rise. The employer can agree to pay the new amount or shop around for a better deal.

Self-funded

With a self-funded (or self-insured) plan, the employer pays for all employee medical claims and operates the plan on its own, instead of buying a fully insured plan from the insurer. As a result, the employer does not have to deal with premium increases that are intended to boost the insurer’s profit margin, as is the case with fully insured plans.

Still, self-insured employers must pay fixed costs, such as administrative fees and any stop-loss insurance premiums or per-employee charges. They must also pay variable costs, such as employee medical claims, which fluctuate from month to month, according to the scope of health care services used by employees and their dependents.

The biggest drawback of a self-funded plan is that the employer assumes all risks. For instance, unexpected claims could morph into catastrophic losses, which the employer would be liable for. Some employers protect themselves against such outcomes by purchasing stop-loss insurance, which comes into play for unexpected catastrophic claims.

Due to the financial risks involved, smaller companies are usually hesitant to self-insure. However, for a business that doesn’t have many claims, a self-funded plan may be beneficial since it removes some of the costs associated with fully insured plans — thereby making it easier to offer employees lower premiums.

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How to Handle Supplemental Wages

Basically, supplemental wages include a variety of items paid in addition to regular wages. Whereas regular wages constitute straight-time hourly pay or fixed salary, supplemental wages include:

  • Bonuses.
  • Back pay.
  • Commissions.
  • Overtime pay.
  • Lump-sum vacation payments.
  • Retroactive pay increases.
  • Severance pay.
  • Accumulated sick leave payments.
  • Taxable fringe benefits and expense allowances paid via a nonaccountable plan.
  • Awards and prizes.
  • Reimbursements for nondeductible moving expenses.

Supplemental wages are subject to Social Security tax, Medicare tax, federal income tax, and applicable state and local taxes, and there are some special twists.

Social Security and Medicare taxes. Withhold these two taxes from supplemental wages as you would regular wages.

Federal income tax. If the supplemental wages exceed $1 million for the year, withhold federal income tax on the amount over $1 million at the highest tax bracket of 37 percent. If the supplemental wages are less than $1 million, federal income tax withholding is based on whether the supplemental wages are paid with regular wages.

  • If the supplemental wages are combined with regular wages — that is, paid as one amount — withhold federal income tax as you normally would for the regular pay period, using the employee’s Form W-4 and IRS Publication 15.
  • If the supplemental wages are paid separately from regular wages and you withheld federal income tax from the employee’s regular wages in the current or prior year, you may withhold federal income tax on supplemental wages at 22 percent. There’s another, more complicated, alternative for withholding federal income tax in this scenario. However, it’s much easier to withhold at the flat percentage.
  • If the supplemental wages are paid separately from regular wages and you didn’t withhold federal income tax from the employee’s regular wages in the current or prior year, the more complicated alternative method mentioned above kicks in. This method can be found in the “Supplemental Wages” section of Publication 15.

State and local income taxes. The rules for withholding state income tax from supplemental wages vary by state. For instance, Alabama has a supplemental tax rate of 5 percent. In New York, it’s 9.62 percent. There may also be special rules, depending on the type of supplemental wage. For instance, in California the supplemental tax rate is 6.6 percent, except for bonuses and earnings from stock options — in which case the rate is 10.23 percent.

If the state doesn’t charge an income tax on wages, no state income tax should come out of supplemental wages. Some states, such as Arizona and Connecticut, impose a state income tax but do not have a supplemental withholding rate. In these circumstances, supplemental wages are taxed at the same rate as regular wages are taxed.

If local income tax applies, withhold supplemental wages according to the rules of the local revenue agency. Also note that rates can change frequently, so keep a close eye on state and local rules and regulations.

Be sure to reach out to us if you have any questions about the supplemental wages you pay your employees.

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Back Pay and Form W-2

Back pay, or back wages, is the difference between what an employee was actually paid and what should have been paid. Maybe you inadvertently made a payroll mistake, but regardless of how the situation was created, you should know that there are several recourses available to your employee. You have to make it right, and make sure the Form W-2 reflects any change.

Back Pay Recovery Under the Fair Labor Standards Act

If an FLSA-covered employee was paid less than the federal minimum wage or overtime rate, he or she can file a complaint with the U.S. Department of Labor to recover back wages.

When a wage claim is filed through the DOL, the agency launches an investigation and supervises the payment of wages due under the FLSA. If appropriate, the DOL will bring a lawsuit against the employer for back wages, an equal amount of liquidated damages, and civil money penalties.

If the employer is found to have intentionally broken the law, criminal penalties — including fines and imprisonment — may apply.

Note that if the wages are not regulated by the FLSA, the employee cannot recover them through the DOL. For instance, vacation, holiday, severance and sick pay; fringe benefits; and premium pay weekend or holiday hours cannot be recouped through the DOL, as they are not governed by the FLSA.

Private Lawsuit

The employee can file a private lawsuit for back wages, liquidated damages, and attorney fees and court costs. However, the employee cannot file a lawsuit if he or she has already received back wages resulting from the DOL’s intervention, whether through supervision or litigation. The employee also cannot file a private lawsuit if the DOL has already initiated a lawsuit for back wages on his or her behalf.

State Remedies

Many states have remedies in place for employees to claim unpaid wages, including state-mandated minimum wage and overtime pay, fringe benefits, and more. These claims can be filed through the state labor department.

Statute of Limitations

Under the FLSA, the employee has two years from when the wage violation occurred to file a wage claim for back wages. If the employer intentionally violated the FLSA, the employee has three years to file a claim. The statute of limitations for filing a private lawsuit or a claim with the state labor department varies by state.

Effect on Form W-2

For income tax purposes, the Internal Revenue Service treats “all back pay as wages in the year paid,” even when the wages relate to an earlier tax year. For example, an employee earns $60,000 in 2018 and in that same year receives a back-pay settlement of $50,000 for the year 2015. This employee’s 2018 W-2 form should reflect not only the $60,000 but also the $50,000.

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