Heritage Foundation Leadership for America

This morning, the Department of Labor released new regulations governing overtime pay that will make it easier for employers to figure out which employees must receive it. While the full impact of the regulations has yet to be determined, they appear to provide several much-needed updates and clarifications to exemptions from the Fair Labor Standards Act. These improvements will limit costly lawsuits and should make it easier for businesses to expand their payrolls.

Outdated Standards
The Fair Labor Standards Act (FLSA) establishes a standard workweek of forty hours and requires that employees who work more than that in a given week receive one-and-a-half times their regular pay ("time-and-a-half") for the extra hours. There are exceptions to this rule, though, such as the "white-collar" exemptions for executive, professional, and administrative employees.

Determining which workers qualify under these exceptions is the responsibility of the Department of Labor (DOL), but DOL has made only minor changes to its rules since 1954. In 1954, computers had vacuum tubes and industrial robots were far in the future. Much has changed in the workplace since then, and the FLSA became increasingly outdated.

The old overtime rules left employers in a bind. Which employees were exempt was not always clear, and court rulings on overtime have been inconsistent difficult to predict. For instance, one appeals court found that assistant managers at fast-food restaurants were white-collar workers, even though they spent half of their time preparing food. However, a federal court in Texas concluded that engineers and scientists who ran simulations of missions for the space program and critiqued the performance of astronauts and mission control specialists did not qualify as white-collar employees and were entitled to overtime pay. In this environment, predatory lawyering has thrived; class-action judgments on the FLSA have reached as high as $90 million dollars.

Newfound Clarity
The regulations that were released today do not represent a major shift in policy; workers in occupations that customarily receive overtime pay are not likely to lose it. But the new regulations do provide clarity to the numerous grey areas that have developed over the last fifty years.

• The new regulations clear up the question of "discretion and independent judgment," a hallmark of white-collar occupations and a source of considerable confusion in the past. The old regulations did not adequately describe how to measure this critical variable. The new regulations, however, provide explicit guidance, incorporating case law and the experience of DOL’s own investigators to give employers a better indicator of which occupations involve sufficient discretion to qualify as exempt.
• The new regulations provide more up-to-date descriptions of specific occupational categories and workplace situations. Obsolete references to "legmen" and "straw bosses" have been replaced by detailed rules covering medical technologists, paralegals, and other less-dated occupations. Employers who look to the rules for clear instructions are more likely than before to find guidance that they can easily put into practice.
• The largest substantive change in the new regulations expands overtime coverage for low-level supervisors, such as assistant managers in retail stores and restaurants. Until now, workers making as little as $8,060 per year—below minimum wage—could be considered "white collar." The new regulations raise that minimum standard to $23,660. This change will be a boon to low-level supervisors, and many will now receive overtime pay automatically.

Clearer rules will allow both employees and employers to be more certain about their workplace rights, preventing conflicts that lead to expensive lawsuits. That there is now less legal uncertainty regarding overtime—due to the replacement of outdated and unclear regulations—should make employers more willing to hire. While many details still have to be explored and worked out in the workplace, the new regulations have the potential to provide a significant benefit to the nation’s economy.

Paul Kersey is Bradley Visiting Fellow in Labor Policy at The Heritage Foundation.