Fear Not: New FLSA Rules Aren’t Applicable to Federal Employees

The author reminds federal workers that the new rules regarding salary based coverage under the Fair Labor Standards Act do not apply to them. However, he explains what the new rules are and what they could mean for the federal workforce.

It is probably a good thing to remind Federal managers and employees that the new rules regarding salary based coverage under the Fair Labor Standards Act (FLSA) recently released by the U.S. Department of Labor (DOL) do not apply to Federal employees.

While employers in the private, non-profit and local government sectors have to be aware of the changes issued by DOL, and may be required to make changes to compensation policies as a result, these provisions do not apply to Federal employees. Only if the U.S. Office of Personnel Management makes changes in the future to the FLSA regulations that cover Federal employees – they can be found in Part 551 of Title 5 of the Code of Federal Regulations – will there be any impact on Federal agency operations.

There are two basic changes made by the recently released DOL regulations that do not cover Federal employees. These are: an increase in the salary basis threshold for coverage by the FLSA, and the periodic adjustment of that threshold.

The first change is an immediate increase in the salary based minimum for coverage by the FLSA for non-Federal employees from $23,660 per annum to $47,476 per annum, slightly more than a 100 percent increase.

And the second change is that every three years the DOL will review this amount and make necessary changes to it based on wage growth across the U.S. economy. These reviews will start in 2020.

One big change that DOL had discussed, but did not make, was changes to the exemption category definitions for executive, administrative and professional employees. DOL had suggested in its request for comments last year that it might consider changes to these definitions that were last revised in 2004. Apparently the volume of comments and concerns raised by private sector, academic and other employers were sufficient to convince DOL that such changes are not necessary at this time.

Federal managers probably should be following the news and the Federal Register to determine if OPM proposes changes to the Part 551 regulations which contain the Federal employee salary based coverage threshold of $23,660 (See 5 C.F.R. § 551.203).

The Department of Labor’s FLSA regulations do not apply to Federal employees of the Executive Branch of the Federal Government, but do apply to some specific organizations that many people think of as Federal Government agencies. These are: The Postal Service, Tennessee Valley Authority, the Postal Rate Commission, and the Library of Congress. They are excepted from OPM’s regulations and covered by DOL’s regulations by 29 U.S.C. 204(f).

In the meantime, this is a good time for managers to review current position descriptions for their employees, ensure that they accurately describe their current duties and responsibilities, and bring any significant changes in duties to the attention of the HR staff to assure that the FLSA status is consistent with the employees’ responsibilities.

And while Federal managers and supervisors are thinking about the FLSA, it is a good time to ensure that each employee’s time and attendance report reflects the actual hours that the employee has worked during the current pay period. Accurately recording each hour an employee works, and ensuring each employee only works when you, as a manager or supervisor want him or her to work, helps to prevent unplanned for expenses resulting for future back pay claims.

Wayne Coleman is a federal pay expert available to help your agency avoid premium pay claims through on-site training. Contact him for more information.

About the Author

Wayne Coleman is a compensation consultant whose career at various Federal agencies and in private practice spans almost 40 years. During this time he has written about and provided training on overtime and premium pay, on the principles of FLSA coverage and exemption, and on related Federal compensation issues. Wayne is available to help your agency avoid premium pay claims through consulting services and training. You can contact him at wayneslyhouse@comcast.net.