On November 22, 2016, the Court granted a nationwide preliminary injunction and stayed the
implementation of the Final Rule. The Court held that the USDOL exceeded its authority and
ignored Congress’s intent of the FLSA. On August 31, 2017, the Court ruled that the Final Rule
was invalid. On October 30, 2017, the Department of Justice (“DOJ”), on behalf of the USDOL,
appealed the Court’s decision that the Final Rule is invalid. At the same time, the DOJ has indicated
that it will file a motion with the Court to “hold” the appeal while the USDOL undertakes further
rulemaking to determine its own EAP salary threshold.
Thus, it is unlikely that the changes to the FLSA that increased the EAP threshold to $913 per week
will go into effect as originally drafted. Nevertheless, employers must continue to monitor this
space for new developments as any new rulemaking by the USDOL could have a significant impact
on your workforce. Further, while the increase to the FLSA EAP threshold has yet to take effect,
this development does not affect the New York State Department of Labor’s recent changes to New
York’s overtime exemption regulations, as set forth below.
b. New York State Overtime Exemption
New York overtime rules generally follow the FLSA. However, New York does not require any
minimum weekly salary amount for the professional employee exemption.
On December 28, 2016, the New York State Department of Labor (“NYSDOL”) finalized regulations
to increase the income thresholds that allow employers to classify employees as exempt from
paying overtime (“NY Final Rule”). The adopted changes to New York’s regulations on overtime
were effective December 31, 2016 and apply to those in the long term care field.
The NY Final Rule increases the income threshold for the executive and administrative exemptions
based on the location of an employer, similar to the recently enacted New York Minimum Wage
changes, as follows:
Minimum Weekly Salary For Overtime Exemption
Effective
FLSA
NYC 11 NYC 10
Nassau,
Rest of
Date
or more or less
Suffolk &
State
Westchester
12/13/16
12/31/17
12/31/18
12/31/19
12/31/20
12/31/21
$913.00* $825.00 $787.50 $750.00
$913.00* $975.00 $900.00 $825.00
$913.00* $1125.00 $1012.50 $900.00
$913.00* $1125.00 $1125.00 $975.00
$913.00* $1125.00 $1125.00 $1050.00
$913.00* $1125.00 $1125.00 $1125.00
$727.50
$780.00
$832.00
$885.00
$937.50
$937.50
*On hold pending appeal and/or further rulemaking
Thus, the NY Final Rule significantly increases the overtime exemption threshold for New York
employers over the next few years. As of December 31, 2017, in order to continue to exempt
employees from overtime, employers must verify that each exempt employee will meet the salary
threshold depending on the location of the work performed. Two memoranda outlining the Federal
and New York State overtime exemptions in additional detail are available here.
(continued)
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