NYS Department of Labor Proposed Overtime Rule

With the final overtime rule for the “white collar” exempt employee minimum salary level issued by the United States Department of Labor (the “DOL”) on hold, the New York State Department of Labor’s proposed overtime rules may take precedence for New York employers. As we previously communicated, the DOL’s new overtime rule – which substantially increases the minimum salary that employers must pay to certain classes of employees to avoid the overtime pay requirements of the federal Fair Labor Standards Act (“the FLSA”) – was scheduled to take effect December 1, 2016, but was placed on hold by a preliminary injunction issued by a Texas federal district court. New York State has now taken matters into its own hands independent of the now-suspended federal rule change.

On November 19, 2016, the New York State Department of Labor (“NYSDOL”) issued a notice of proposed Rule Making Activities to amend Parts 141, 142, 143 and 146 of 12 NYCRR– Minimum Wage Orders – in part to increase the statutory minimum salary level for the executive, administrative and managerial exempt employees (but not for professional employees). The current weekly exempt salary level in New York is $675 (or $35,100 calculated annually). The suspended federal DOL rule increases the FLSA minimum weekly level to $913 (or $47,476 calculated annually) from the current level of $455 weekly (or $23,660 calculated annually).

Significantly, if the new federal minimum salary level eventually takes effect, New York employers covered by the FLSA must pay their employees the higher of the New York minimum salary level and the new federal minimum salary level to claim the overtime exemption.

The public comment period ended December 3, 2016, and the proposed rule change could take effect as early as December 31, 2016. However, the NYSDOL could revise the rule or delay its implementation. Below is a summary of the weekly salary levels for the exemption in Part 142 (for Miscellaneous Industries and Occupations), which escalate each year and vary by geography. Notably, under the proposed NYSDOL rules, the minimum salaries include the value of board, lodging or other allowances and facilities, which do not exist under the current New York exemption.

(1) New York City for

Large employers of eleven or more employees

$825.00 per week on and after December 31, 2016;
$975.00 per week on and after December 31, 2017;
$1,125.00 per week on and after December 31, 2018;

Small employers of ten or fewer employees

$787.50 per week on and after December 31, 2016;
$900.00 per week on and after December 31, 2017;
$1,012.50 per week on and after December 31, 2018;
$1,125.00 per week on and after December 31, 2019;

(2) Remainder of downstate (Nassau, Suffolk and Westchester counties)

$750.00 per week on and after December 31, 2016;
$825.00 per week on and after December 31, 2017;
$900.00 per week on and after December 31, 2018;
$975.00 per week on and after December 31, 2019;
$1,050.00 per week on and after December 31, 2020;
$1,125.00 per week on and after December 31, 2021;

(3) Remainder of state (outside of New York City, Nassau, Suffolk and Westchester counties)

$727.50 per week on and after December 31, 2016;
$780.00 per week on and after December 31, 2017;
$832.00 per week on and after December 31, 2018;
$885.00 per week on and after December 31, 2019;
$937.50 per week on and after December 31, 2020.

Gibbons Employment & Labor Law Department attorneys regular counsel employers concerning wage and hour compliance matters.

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