Are you tired of lawyers commenting already on the new overtime rules?
(The answer should be no, of course, since you’re reading this blog and thus have room for one more view.)
But I think it’s fair to say that we haven’t seen a feeding frenzy like this on employment law in many, many years. And with the massive publicity of this rule comes an opportunity, as I’ll explain too.
So, dear readers, deep breath time. We’ll get through it together.
There’s already been lots of pixels spilled about how employers can “solve” their overtime issues that will arise under this rule by making various changes in their workplace.
For example, employers can increase an employee’s salary to $47,476 annually if that employee otherwise meets the duties test, to keep an employee “exempt” from overtime.
Or the employer can limit the overtime that the employee can work, explaining that it is concerned with controlling costs.
But in all the analysis, I think one big thing has been overlooked: Employers can use this announcement as an opportunity to review and re-classify all sorts of employees — even if they are not directly impacted by the new rule.
Too often, employers who discover that they have misclassified employees believe that they are in a conundrum. Keep their head down and hope no one notices, or properly classify the employee and keep their fingers crossed that they don’t get sued for back pay. Neither option is a great one for employers who need to get into compliance. (I once proposed an amnesty proposal to solve this dilemma.) Sometimes, employers have legitimate reasons why an employee has been classified as non-exempt but wants to avoid any future issues. Perhaps in other situations the employee isn’t working overtime anyways.
But here is where the opportunity comes in: As I highlighted at the start, the new overtime rule has received unprecedented amounts of publicity in the workplace. No doubt most of your employees have now heard something about it. So, some won’t be surprised if they are notified that things are changing for their position as a result of the new rule.
While the rule doesn’t provide amnesty for employers who make such changes, the new rule does remove some of the suspicions employees may have about the changes — even when those changes are perfectly legal. Employees may be more understanding. Employers can explain truthfully that the new rule has required them to review the classification of all of its employees and the changes are as a result of the rule.
So, yes, the rule may be difficult to comply with. But don’t miss out on the opportunities that may arise from this rule as well. Full compliance with the law will be so much cheaper than paying for a massive wage-and-hour suit. And as I’ve said before, compliance is the ultimate goal. You should not be looking for ways to circumvent the law.
So ultimately, perhaps you’ll view the new overtime rule as more about lemonade than lemons, as the saying goes.