'10% Credit' Approach Might Necessitate Timekeeping

Author:Mr John Thompson
Profession:Fisher Phillips LLP

Management need not keep hours-worked records for employees who qualify for one of the federal Fair Labor Standards Act's Section 13(a)(1) executive, administrative, professional, outside-sales, and derivative exemptions.  29 C.F.R. § 516.3.  Of course, employers may nevertheless maintain those records for such employees if they wish, and some do.

However, one aspect of the U.S. Labor Department's revised compensation requirements for these "white collar" exemptions could mean that some employers will have to keep records of at least some of these exempt employees' hours worked.  So why might that be the case?

"10% Credit" Ramifications

When USDOL's revisions take effect, employers will be permitted to (i) pay as little as 90% of the new $913 salary threshold for up to a 13-week period, and (ii) rely upon nondiscretionary bonuses and other incentive payments to provide the other 10% (except for "highly compensated" employees).  29 C.F.R. § 541. 602(a)(3)(effective December 1, 2016).  If in the end those additional amounts fail to close the 10% gap, then one option is for the employer to make-up the difference by paying a lump-sum that is sufficient to do so.

But what if a situation arises in which the employer does not want to pay the catch-up amount for some reason?  For example, maybe paying the shortfall for all affected employees will be a budget-buster, or perhaps management will be facing a cash-crunch.

Well, the alternative is to treat these employees as having been non-exempt during the relevant period.  See, e.g., 81 Fed. Reg. 32427 n. 67 (May 23, 2016).  And this will include paying them the required FLSA overtime compensation for all overtime hours worked during that interval.

But here's the kicker:  Management can be sure that it has correctly calculated the overtime...

To continue reading