Some municipal and school officials have expressed concern about the prospect of the U.S. Department of Labor substantially raising the dollar threshold at which employees can be exempted from the provisions of the Fair Labor Standards Act (FLSA). The current threshold, unchanged for decades at about $23,000/year, could be raised to $42,000 or even $52,000 under proposals being actively considered.
With very few exceptions, we think even a substantial increase in the threshold will not have a significant impact on public employers in Massachusetts, for four main reasons. First, the salary threshold only comes into play for employees properly deemed exempt in administrative or executive or professional positions. Those exemptions under both federal and state law, require various levels of duties and/or supervision. If an employee has been improperly classified, there is potential liability without regard to the salary threshold.
Second, we think that a number of positions in public service which could be deemed exempt under the FLSA and state law, are in fact, not treated as exempt. Many are covered by collective bargaining agreements which provide overtime pay for all hours worked (and usually counting time off as hours worked) in excess of a regular workweek, even a workweek of 35 or 37.5 hours per week.
Third, we think the vast majority of Massachusetts municipal employers who properly exempt administrative and executive and professional employees are paying salaries above the proposed higher thresholds.
Fourth, even if the threshold causes the loss of exempt status, overtime (or, by agreement comp-time) is only required under the FLSA for hours actually worked in excess of 40 hours in a week. All leave time does not count under the FLSA. Of course, if a previously exempted position becomes subject to the FLSA, there will be a need to track actual hours worked, which in the case of some heads of small departments (e.g. recreation) could be somewhat challenging.
