a round-up: obesity, sex discrimination, and overtime pay

by Alison Green on April 15, 2016

Three interesting developments related to employment law that you may be interested in, plus one more rant —

• The 8th Circuit Court of Appeals has ruled that obesity that isn’t linked to or caused by an underlying medical condition is not an ADA-protected disability.

• Back in July of last year, the EEOC determined that discrimination on the basis of sexual orientation is illegal because it’s inherently discrimination because of sex. Last month, it announced that it has filed its first two discrimination cases based on sexual orientation.

• So, the federal government has proposed a major change to the rules that govern who must be paid overtime. If it becomes law, you’d have to be paid a minimum salary of $50,440 in order to be exempt from overtime pay requirements – a big increase from the current threshold of $23,600. If the new rule becomes law, employers will have to either track and limit the number of hours a large pool of people can work or start paying them overtime … or, of course, raise their salaries to the new threshold, which in some cases might be the most cost-effective way to proceed for employees who work lots of overtime. There are going to be really, really big ramifications to this. It hasn’t been clear when the new rule might take effect (if indeed it does), but employment lawyer Jon Hyman says he’s hearing that the regulations will publish in July with an effective date in September.

• And last, I can’t believe that in yesterday’s post about workplace rants, no one linked to the amazing memos from the Tiger Oil CEO in the 1970s Here are some excerpts for you to enjoy, but then you must go read the full thing:

“I swear, but since I am the owner of this company, that is my privilege, and this privilege is not to be interpreted as the same for any employee. That differentiates me from you, and I want to keep it that way.”

“I have noticed the rugs throughout this office are very dirty from people spilling things on them. I will have them cleaned (which will cost me $1,000.00); and, in future, if people cannot carry their coffee without spilling it on my rugs, we will do away with the coffee pots entirely just as we did away with the food.”

“Do not speak to me when you see me. If I want to to speak to you, I will do so. I want to save my throat. I don’t want to ruin it by saying hello to all of you sons-of-bitches.”

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  1. TowerofJoy*

    Personally I am interested in the exempt changes. I work in an area of the nonprofit world that is traditionally very underpaid and requires the average professional staff member work frequent overtime. It would be fine if there were weeks we could work less but there never are because there is always another project in the wings.

    1. evilintraining*

      Ditto. I’ve worked in nonprofit for 24 years, and yes, nonprofit exempt staff are traditionally underpaid. This has never affected me as an admin, but I’ve known/supported plenty of people who were probably making around minimum wage after calculating their pay by the number of hours they worked due to evening meetings, events, etc. OTOH, it’s nonprofit, and there’s only so much room in the budget for salaries; this would be a budget nightmare for many.

      1. Clinical Social Worker*

        I feel like this is a terrible reason to pay people non-liveable wages. It’s one thing to not pay much, it’s another to not be able to support yourself. I’m so tired of this being the excuse, somehow they always find the hours or money for other things, but not for staff.

    2. Mona Lisa*

      My previous employer was a non-profit that paid their staff well-below market value as well (one of the reasons I ended up leaving), and I’m so curious how they’re going to react to this now. People working there were frequently working massive amounts of overtime, and we were told that we had to be working at least 50-60 hours/week to make “Exceeds Expectations” on our performance reviews. I wonder how they’ll deal with the salaries of the lowest level employees who are all paid <$30,000 and make up roughly half the staff.

      1. neverjaunty*

        I imagine they’ll try and skirt the overtime laws until they get slapped down; that’s usually how those things go.

        1. Mona Lisa*

          I’m sure that’s what will happen. They made a big deal about how everyone was made exempt shortly before I joined staff, but after the many conversations here about what constitutes exempt vs. non-exempt, I’m fairly certain they skirted some rules there, too. I can think of at least one position that should definitely have been non-exempt.

    3. DMC*

      I agree. Nonprofit workers are underpaid. The problem becomes when they ARE paid market value, then people scream about how the nonprofit is using X percentage of their funds on “exorbitant salaries.” There really is this notion that people should work for less in nonprofit for the “greater good.” It’s unfortunate.

      1. Mona Lisa*

        I hate that idea and the attitude that surrounds it. I also worked in music performance for a while, and when charging for performances, people expect you to do it because you love music. I still have bills to pay even if I’m working at something I enjoy doing or a cause I support!

        1. YawningDodo*

          As a nonprofit worker myself, I think there’s a certain level of expectation for those of us going into these careers that we’re going to be underpaid and that it’s something we have to more or less accept in order to do the kind of work we want to do. I’ve found people outside the nonprofit sector take it several steps further, though; there is definitely a general consensus that if we want market value we’re greedy. Someone once told me in all seriousness that they thought the director of a nonprofit would/should literally do the job for free “if she really loved it.”

          Part of me perks up at the news that I could get paid for my overtime under the new rules, and part of me cringes to think of the cutbacks we’ll probably see at my current employer if the new rule goes through. Thankfully all the salaried staff are already tracking their time spent on various projects, so we can make a case to the board and to donors that xyz is the actual time it takes to bring such and so project to fruition. I just think that we’re so heavily dependent on uncompensated overtime right now that we’re going to have a serious problem getting things done if they get consistent about making everyone stick to a forty hour work week.

          Very mixed feelings over here. I have always thought we shouldn’t depend on uncompensated overtime because I believe in work life balance. I also want my nonprofit to continue to succeed and grow, though.

          1. Tyrannosaurus Regina*

            “Very mixed feelings over here. I have always thought we shouldn’t depend on uncompensated overtime because I believe in work life balance. I also want my nonprofit to continue to succeed and grow, though.”

            I feel this SO hard. (So, so hard.) The place I am with it is if a nonprofit relies so heavily on uncompensated overtime from people who maybe-probably-shouldn’t-be-exempt, then there are larger sustainability issues that need to be addressed.

            I can think of my former workplace, for example, which in my opinion has spread itself too thin with programming as it is and will probably be Severely Boned by the new overtime laws…and while it might be bad for them in the short term, I think in the long term they’ll actually do better if they trim their programming a skosh and pay closer to market rates to retain the people who make the programming possible in the first place.

            But it’s anxiety-provoking just to think about, and I don’t even work there anymore.

            1. YawningDodo*

              It’s complicated on a workplace-specific level for me, too, because our institution has spent the last five or six years clawing its way back out of a slump that had resulted in severely reduced output and huge cuts on jobs. We’re finally getting back to where an institution of our size and type should be financially and professionally. It’s so much better now than it was a few years ago, but it’s still an upward climb. All I can say is that I’m glad the exemption adjustment didn’t happen when the place was first turning around or I’m not sure it would have come this far.

              For sure we need to consider the sustainability of what we’re doing, but I’m kind of nervous about how prepared we actually are to deal with it.

          2. TowerofJoy*

            “expectation for those of us going into these careers that we’re going to be underpaid and that it’s something we have to more or less accept in order to do the kind of work we want to do”

            But should it be? In my sector – I am trying to keep to my wheelhouse because I know Alison has spoken before about many nonprofits that pay competitive wages and I don’t want to over-generalize – but in my sector they want increasingly excessive education. Degrees that you have to pay out of pocket or in loans (which is a problem for the diversity of the field too!) that cost upwards of 80K. I don’t expect to get rich doing this job, but I expect to be able to live without needing food stamps.

            1. YawningDodo*

              Believe me, this is an argument I’ve seen again and again within my field. High education requirements, low pay, and an expectation that you’ll spend the early part of your career working for free and/or hopping from one temporary position to another. There’s been a lot of talk about how jobs like mine aren’t valued and how we’re not conveying the value in a way that prevents this kind of treatment. I get what you’re saying and I agree with you. I just also don’t know what someone in the trenches can actually do about it short of turning down the most egregiously underpaid positions, if one has the luxury to do even that.

          3. Rob Lowe can't read*

            I feel the same way. My former employer (small public school district in a small, very poor city) is going to have to raise salaries for much of its teaching force by about 20% to meet the new threshold. Do my former colleagues deserve to be compensated fairly for all the work they do? Of course. But I have a feeling there will end up being cuts in order to come up with the money to do so, and those will be challenging for everyone.

          4. the gold digger*

            I have always thought we shouldn’t depend on uncompensated overtime because I believe in work life balance.

            I don’t like it because it is stealing employee time. It is wrong and if an organization has to depend on stealing to survive, then maybe it should find another path. I work for money. That’s the only reason. If I didn’t need money, I would not work. I do not work for free.

            1. YawningDodo*

              Okay, wow, I strongly disagree with that choice of language. By definition a salaried employee does not have their pay calculated by the hour; when you take a salaried position you’re agreeing to take the flat salary in exchange for your overall work, not for the precise forty hours per week. You can’t steal what the employee has agreed to give.

              I say that as someone who sticks to a forty hour work week apart from an annual event that has me work longer hours for one week of the year, because that’s the work life balance I want and I would not choose to work a job where it wasn’t possible for me to do that. I also say that as someone who’s kind of annoyed that you’re slandering my employer.

              1. Ask a Manager* Post author

                Yeah, that’s the thing — by taking a salaried position, you’re agreeing to a flat salary, not an hourly one. It’s sort trying to argue it both ways to say that you want the benefits of being exempt (flexibility, etc.) but that hours over 40 are uncompensated.

                1. Editor*

                  But what if you take a new job where they promise you that the hours are reasonable and will probably be under 50 hours a week, then the workplace is reorganized and the new job turns into a 60-plus-hour-a-week nightmare just like the previous job? The person I know in this situation has already started looking again, but its discouraging.

                  There are all kinds of gradations that affect whether or not a salary fits the number of hours required. My personal rule with nonprofits is to look at compensation and benefits across the board as compared to compensation and benefits for the highest paid people in the organization. (I’ve mostly used this in deciding about which local nonprofits to support, since sometimes I can find someone who knows someone working in the lower ranks.) a nonprofit that pays its top people according by comparing them to corporate compensation but pays its social workers like they were uneducated laborers is not getting my donations. On the other hand, I heard about someone at a small nonprofit who was poorly paid while the top person hauled in a big salary. It turned out, however, that the director was great at bringing in donations, grants, and matching funds, but she managed the programs so the poorly paid staff members received four weeks of paid vacation a year. I think they folded or merged after I moved away, which is too bad.

    4. LotusEclair1984*

      Should these new rules gain approval, this would be welcome news for many workers, especially in the nonprofit world. It is all too common for nonprofit workers to be martyrs for their causes, and therefore be terribly underpaid.

    5. De Minimis*

      I’m in a non-profit but we’re in a high COL area and everyone is paid to where we’d all be exempt under the new rules anyway.

      1. TowerofJoy*

        Sadly in the sector I am in, even in high COL areas its possible to be mid career and still be under this threshold. And this isn’t a few cases, its ubiquitous through the field.

    6. Ted Mosby*

      This is why I get so angry when people get mad about nonprofit directors making a lot of money. I was in the nonprofit sector for years. I’m going to toot my own horn and say I have a few very specific skills that are very rare in my industry. I moved to a for profit company because I was sick of working more hours and making half what most of my friends make. You cannot retain talent expecting crazy hours and low pay.

    7. Miles*

      I’m amazed the government hasn’t added any language that says these things have to follow the inflation index or anything like that. We’ve been aware of inflation for over a century & there’s no point making it so it has to be debated every year.

      I always thought the cutoff for exemption was ridiculously low considering the 80 hour workweeks that are so common at those salaries (at least in the types of jobs that men are likely to have).

    8. Vicki*

      “If it becomes law, you’d have to be paid a minimum salary of $50,440 in order to be exempt from overtime pay requirements – a big increase from the current threshold of $23,600.”

      Wow.
      This is awesome!!

    1. C*

      They are just a treasure trove of crazy. Some choice highlights:

      DO YOUR JOB AND KEEP YOUR MOUTH SHUT!

      …there will be no more birthday celebrations, birthday cakes, levity, or celebrations of any kind within the office. This is a business office. If you have to celebrate, do it after office hours on your own time.

      If you have business with me, the fastest way [to talk] is too slow – day or night.

      1. Augusta Sugarbean*

        I think this is my favorite so far “All scraps of metal, nails, pieces of pipe, etc. will be picked up and not left laying around the yard. I want to see someone bend over other than me.” (He would have been impossible to work for but he has some good points.)

      2. Adonday Veeah*

        My faves:

        Anyone who lets their hair grow below their ears to where I can’t see their ears means they don’t wash. If they don’t wash, they stink, and if they stink, I don’t want the son-of-a-bitch around me.

        There is one thing that differentiates me from my employees. I am a known son-of-a-bitch, and I care to remain that way. I have the privilege of swearing publicly, in front of anyone, or doing anything I want to because I pay the bills. When you work for me, you don’t have that privilege. You are representing me. Don’t act as I do. I am the only one who can act that way. You people are all to be respectful to your fellow employees and to other people we do business with. That may be deemed any way you want to take it, but those are my orders, and I intend to enforce them. What you do in your home is your own business, but what you do in my business is my business. I am not a preacher or I am not trying to save the world. I just intend to run my business the way I want to. This pertains to the supervisory personnel.

    2. Shy Anon*

      “Anyone who lets their hair grow below their ears to where I can’t see their ears means they don’t wash. If they don’t wash, they stink, and if they stink, I don’t want the son-of-a-bitch around me.”

      I love how he makes sure to properly hyphenate son-of-a-bitch, haha.

        1. Jennifer*

          I really don’t think this guy would want to hire women for anything besides prostitution.

        1. Sadsack*

          Imagine having to take dictation from this guy. How could she keep from exploding from laughter? But I guess fear of losing her job would help with that.

    3. Michelle*

      I thought out the Tiger Oil memos yesterday but was sure someone else had linked to them! They are great!

    4. Chalupa Batman*

      “If you don’t know how to type, you’d better learn.” That’s solid career advice no matter how you slice it.

      As glad as I am that he’s not my boss, I kinda like Tiger Mike.

    5. LBK*

      I suggest that you people buy enough cigarettes to keep here for yourselves to smoke because, by God, you will not go and buy them on my time.

      I don’t know why but I find this hilarious.

    6. Ann Cognito*

      They are the funniest thing I’ve read in a long time! Easy to laugh I guess when you’re not working for him. I’d love to know what some of his actual employees viewed him back in the day.

    8. Mountain Beabull*

      Tiger Mike is the Kanye West of 1978. His memos read like one long twitter rant.

    9. De Minimis*

      I never tire of Tiger Mike.

      And as many here have said before, a lot of what he asks isn’t that unreasonable.

    10. snuck*

      I love this.

      He’s ornery. He knows where he stands, and you. And he’s not overly abusive as much as just demanding a particular standard in a rather rough way. I’d work for him probably… I like knowing where I stand. And the not talking thing? Golden. Give me a reason to not stand around and chat all day woot!

    11. Ignis Invictus*

      Am I the only person who thinks these are awesome (for the time) in a good way? This guy had CDL rules & regs 30 years ahead of his time. “Drivers must sleep at least 6 hours in a 24 hour period”, “if you’re tired, sleep.” “Anyone caught popping pills to stay awake will be fired” This stuff is literally 30 years ahead of its time.

      1. Miss Herring*

        I agree with you. Some of his rules are a little off, but the vast majority seem to me to be either solid business practice or in response to some people doing stupid stuff. The items regarding shipping manifests, proper billing, no freeloaders on rides except for those who had an accident – these are all good things. The ones like “no birthday parties” and “don’t use [this room] as a hallway” look like they are in response to complaints and people slacking off.

        I do especially love his continuous use of his full name, Edward Mike Davis, though!

  3. asteramella*

    EEOC staffers have announced at multiple industry conferences that the final rule will be published in July and will be effective 60 days after publication. The writing is pretty much on the wall with this one. Every U.S. employer with currently FLSA-exempt staff should be planning NOW for how to deal with the rule change.

  4. Karina Jameson*

    Regarding the overtime rule…this is great news but too late for me to benefit personally. For several years I was an Admin Assistant for a few different companies, and they ALL had us admins working 50+ hours “because we were salaried.” It wasn’t until after I moved on from that type of job that I found out the scam they were pulling wasn’t just immoral, but illegal, too. I’m also curious how this will effect retail workers, who often make something like $28,000 – $32,000 and often work 60 hours per week. I remember more than once getting my check, dividing my pay by the hours I worked and seeing that it was something like $4/hour. It’s amazing how companies will treat their workers simply because they can.

    1. ThursdaysGeek*

      I’m pretty sure that if you were earning less than minimum wage based on your hours worked, that has always been illegal.

    2. sam*

      A retail worker should generally have been non-exempt, even if their salary was just over the minimum in any event, because their job duties don’t pass the other tests for exempt qualification.

      Not to get into too many specifics, but someone like my administrative assistant makes over the minimum (old or new), but she’d still be non-exempt regardless of what we paid her, because she’s an admin. She gets overtime pay when she works over 40 hrs/week.

      1. Karina Jameson*

        I wonder why so many companies broke this exemption rule (law?) for so many years. I’m not kidding, this happened to me in 3 different states in various fields. And not all of my jobs took horrible advantage – one would let us flex our time, and that was nice. But the worst company was the last one where I worked where they blatantly had us working 50, sometimes 60 hours a week, would not allow flex time (but oh boy, did they notice if you were 5 minutes late coming in! Just not if you stayed until 7 or 8 pm…) and never, ever paid overtime. I think they are still doing this!

        1. Mike C.*

          If you’re literally asking why, it’s because people generally aren’t taught about the law or how to advocate for themselves, and because the employers could get away with it. It’s a two-fer when you consider that those who are working these hours generally can’t afford legal aid or are simply too exhausted trying to live their lives to risk putting up a fight.

        2. Green*

          It’s the same reason that people are given 1099s and paying self-employment taxes when they are legally employees.

        3. N*

          There are certainly companies who blatantly disregard the law on this point – aka, they know certain employees should not be exempt and yet they continue to put them in the exempt category. However, after working in employment law and HR for several years, most of it is because this is such a gray area. Some of the exemptions are clear, but most of the time they are not. In some companies, an administrative assistant could be exempt based on his/her duties, but in many others they would not. Most business owners look to what their friends / competitors are doing and say, “Hey, works for them, works for me,” without doing the proper analysis. It is so fact-specific that it is really easy to get it wrong.

          But I certainly do sympathize with anyone who has been put in that situation knowing that their employer was not being fair. The exemptions are not supposed to be used to force people to work unpaid overtime, they were supposed to help with jobs that can have a lot of fluctuating hours from week to week and busy season to down season.

      2. BananaPants*

        Retail and restaurant MANAGERS stand to benefit significantly. My dad was a restaurant manager and there are plenty of assistant and general managers of restaurants designated as exempt even though their actual duties do not meet the other requirements to be considered exempt under the FLSA. In retail and restaurants there are a lot of “managers” working long hours for what amounts to less than their hourly employees are making.

    3. Elizabeth West*

      I had a job interview (and offer) for a salaried position that paid minimum wage. When I asked out of curiosity, the employer told me there were many opportunities to get more hours (offsite work–it was a drug testing company). It sounded weird to me, and I thought maybe they were fudging the overtime rule somehow–maybe saying that the time you spent traveling to and from sites wasn’t paid. I asked the temp agency I worked for at the time and they told me NOOOOOO they cannot do that. Turned it down. I’m glad I had someone to ask!

    4. OwnedByTheCat*

      Yes – I so wish this had been in effect when I was 24 and landed my first salaried job making $28K a year. I regularly worked 11-12 hour days, came in on weekends, and had late nights.

      1. Ama*

        Yeah, when I was in academic administration I only cleared the new threshold in my last year there and I would have been eligible for a lot of overtime, because I was expected to help with evening and weekend events frequently. (I know some departments offered comp time but mine did not.) I’m very curious to see how this goes down in academia generally, where admin staffs have been cut to the bone in recent years — there’s going to be a lot of sticker shock when they start doing the calculations on how many hours the admins are working.

        1. TL -*

          Do you mean admin like admin assists or admin like running the college positions? Because the latter has been hugely increasing within universities for the last decade or so.

      2. Rabbit*

        I feel you, 100%. I was so taken advantage of in my youth–even though I knew better, I needed a job.

        I know this isn’t what you meant at all, but some of my co-workers are very much against the “Fight For 15,” their reasoning being “Well, I never got to take advantage of that kind of pay, so…” While there are arguments for and against the $15 min wage, it makes me so sad that “it doesn’t benefit me so let’s not have it benefit anyone” is many people’s reason. :/ I can see some people being against this kind of ruling for the same reason.

  5. TAG*

    Actually, exempt and non-exempt classification is not entirely up to the employer’s discretion. My understanding is that even with a pay raise to the minimum threshold, the job responsibilities also still dictate exempt/non-exempt classification

    1. Victoria Nonprofit (USA)*

      The classifications aren’t at all up to the employer’s discretion, actually. So yes, raising the salary above the minimum threshold won’t automatically make someone exempt. It will just prevent them from automatically being non-exempt.

    2. Kay*

      Can someone else weigh in on this? That’s the question I came to ask.

      I get that there’s always been a salary threshhold in the exempt/non-exempt classification, and that’s the major piece that’s changing here.

      But will the other rules also be changing? So even if your job duties typically classify you as exempt (because you manage, or because you engage in intellectual work or however it’s worded), if you make less than the threshold, would you then become non-exempt?

      Or if you are currently classified as exempt because of the nature of your work, it doesn’t matter where your salary falls, you’ll still be exempt?

      I am currently exempt and about $10k below this threshold, and I work a TON of overtime that is currently only logged for project/grant purposes. Routinely 10-20 hours per week, some weeks more. (I was at 55 hours this morning before I even came to work.)

      1. Teapot Project Coordinator*

        Yeah, so let’s say you’re an architect(they fall under the professional exempt category) and you make 40,000 per year.
        If this goes through and your employer keeps you at $40,000 a year, they will need to convert your annual salary to an hourly wage, let’s say $21 per hour(I think that’s close to 40k per year) and then you will be a non-exempt position, so for every hour over 40 you work, you will be paid $31.50 per hour.
        This is why is may be beneficial for some companies to raise you to the 50,440 salary, to keep you exempt, because if you’re consistently working 10-20 hours OT per week, it’s cheaper for them to give you a 10k raise than pay you $300-$650 a week in OT.

        1. CADMonkey007*

          Curious to see how this will affect the architecture industry, because it’s pretty common for entry level people to work a put in a ton of overtime. Will companies offer exempt level salaries, or lowball the salary to offset the OT pay rate?

        2. Catbert is my hero*

          However, for many non-profits, who often depend on local or state funding to provide services in communities, there is no extra money to pay overtime or to raise salaries. The increase will likely result in cuts in services to the community, and/or a cut in other benefit expenses to staff. In addition, the state and local governments are often strapped, and may have already based their budgets for the next year. I agree that the threshold should increase (it has not changed since 2004), but 113% increase is too much at once.

          1. AnotherLibrarian*

            Yes. For small libraries in a state with a budget crisis that’s affecting local services, there are no funds to raise salaries to that level, pay overtime, or hire more employees.

          2. Crystal Vu*

            I agree, this is going to hurt the nonprofit where I work. We’re down to two exempt staff (out of about 20) already, and after this threshold changes, only the Executive Director will still be able to stay exempt. Yes, this means most of our manager-level staff are already non-exempt.

      2. Stryker*

        So the way I understand it is that there are TWO requirements for an employee to be considered “exempt” (from overtime pay):

        1. Must have job duties match the “professional” standard set by the DOL/feds. (So that’s your “skilled labor”/”management”/other bits and bobbles.)
        2. MUST have a salary above the threshold. (Currently ~23K, raising to ~50K.)

        Unless BOTH of these rules are met, the employee is considered non-exempt.

        So this means an employee could qualify as a professional and make a salary of, say, $40k. They would NOT be exempt; they would qualify for overtime.

        This is my understanding, anyway. (IANAL) As by law, an employer can’t change the employee’s “professional” qualifying status for Point 1 (without SUBSTANTIAL job description changes), the way employers get to deal with the expense is via Point 2: Either raise the wage so overtime’s not an issue, or gamble that the overtime pay increase won’t cost the company as much as raising the permanent salary.

          1. Stranger than fiction*

            Alison I’m so confused by the mention of administrative workers are supposed to be exempt. I’m an admin and I’m hourly/non exempt. Should I be exempt? (I make enough they wouldn’t need to give me a raise and rarely have to work like 15-30 minutes overtime)

            1. Ask a Manager* Post author

              Administrative in this context means directly involved in running the organization, not the way we use it in “administrative assistant” and such. So like decision makers on major business issues, etc. — the COO, for example.

            2. i'm anon*

              People who qualify for exemption can legally be treated as non-exempt. Employers only get into trouble if it’s the other way around (treating non-exempt workers as exempt).

            3. MaggiePi*

              I think this is a confusion of Admin Assistant and Administration. Admin Assistants as I understand would almost* always be non-exempt, as I don’t know of any case in which they’d meet the duties test, even if their wage was high enough.
              However, administrators, such as directors and C-suite people, are almost* always eligible to be exempt under the duties test, and are likely, though not guaranteed, to qualify also under the wage requirement.
              *Because IANAL and everything seems to somehow have an exception somewhere.

              1. De Minimis*

                Looking at where I work, I think everyone also meets the administrative rule for exemption…everyone is carrying out some level of program work and is more or less in charge of their own schedule, workload, have some degree of autonomy, and so on. I think it’s been pretty well calculated so that any position where there might be a question about their qualifying as exempt has ended up going through a temp agency or else is a part time hourly position for student workers.

        2. Kay*

          Thank you, that’s really clear. Sent an email to our ED and my boss because if this does go through for September it’s going to majorly impact our strategic planning for several of our programs that we’re working on now!

          2. soooo Anon*

            Based on the earlier proposed rule, only if it is a non-discretionary bonus. So guaranteed.

      3. TL -*

        You can’t be classified as exempt if your salary falls below the exemption level, period. Right now that level is $23,400 and they want to raise it to $56,000.

        1. blackcat*

          I thought there were some professions that were automatically exempt, regardless of pay. Mostly, I’m thinking about teachers. There’s no real way to turn teachers into non-exempt employees, and 56k is WAY higher than many (most?) teacher salaries.

          1. doreen*

            I’m not sure why there’s no real way to turn teachers into non-exempt employees. It might result in other changes that teachers are not in favor of ( such as not being permitted to grade assignments at home ) but that doesn’t mean it’s not possible.

            1. Creag an Tuire*

              It would eliminate most after-school programs and extracurriculars. The public outcry would be massive.

              1. doreen*

                OK, it might result in changes in some places that people other than teachers might not like, but that would only affect some teachers in some locations .* I thought that blackcat was referring to something more across the board.

                * I know teachers who don’t have anything to do with extracurricular activities, schools where teachers are paid extra for activities and after-school programs and schools that only provide the space for activities/after-school programs run by non-employees on either a volunteer or paid basis.

            2. N*

              Teachers are exempt already. They have a special carve-out in the original legislation and I’m sure they will continue to have that carve out as well. So do lawyers and several other “professionals” that are listed specifically in the legislation as being exempt.

      4. Angela*

        My understanding is that they would need to either bump you up to the minimum required for an exempt person OR make you non-exempt and pay you for all OT hours worked. So if you are at, say $40,000 per year, they could pay you either the minimum of $50,440 to keep you exempt or make your position non-exempt and your hourly rate would be about 19.23/hr (based on 40 hours per week) and have to pay you OT for all hours over 40 in a week.

      5. Mortorph*

        From what I understand, they are also considering changing the duties test related to exemption closer to the standards currently applied in the state of California: Not only does an employee have a particular set of duties they must perform to be considered exempt, they must also spend a majority of their time performing those duties.

    3. payroll's whipping person*

      Tangential question – anyone know is there a corollary to the deductions for repayment can’t drop your hourly below minimum wage for this rule and if it would apply to repayments of involuntary salary advances? My employer is forever screwing up my pay with the small favor of it usually being in my favor but then I have to endure weeks to months of reduced paychecks and it’s even crossed fiscal AND calendar years. Would those years where I’m still paying back their error in Jan/Feb (and once in APRIL!) trigger this rule if my salary for that year fell below the new threshold?

    1. fposte*

      Not sure what you mean. He’s talking about the fact that there won’t be any exempt making 24k if this goes into force.

      1. Observer*

        If you read the post, he talks about how the change is going to have a negative impact on currently exempt workers because their employers will “have to” stop letting them telecommute.

        It’s nonsense, but it’s HA makes a good point as well.

        1. Ask a Manager* Post author

          He’s not saying they’ll be required to, but that it’s really likely that many will. When you’re legally responsible for tracking someone’s hours, telecommuting becomes more complicated. Not impossible, certainly, but more complicated and can be less desirable for the employer.

          1. Observer*

            That is totally the implication. Clocking in and being physically present is, in his (or the person he quotes) view THE way companies police their employees work schedules. And anything else is going to require all sorts of new and complicated mechanisms, leaving the employer with little choice but to ban telework.

            It’s nonsense.

            2. Cat*

              I think this all depends on enforcement, which is unlikely to be so aggressive that self-reporting of teleworking isn’t permissible (much like it is now).

              1. Slippy*

                Also from an IT/audit standpoint it is not all that difficult to track a telecommuter’s hours. You can easily track them tracking their connection and login through the VPN (or another app if you so choose). That takes care of the of the hourly tracking requirement and the production and quality of the telecommuter’s work is still up to their immediate supervisor.

                I think most of the corporate complaints about the new exempt rules are that they will no longer be able to demand large amounts of overtime without additional compensation. I have a very small violin around here somewhere….

          2. Meg Murry*

            It’s not just telecommuting – its flexibility overall. I’ve worked in more than one company that had one set of rules for people that punched a time clock and another for salaried employees. We had a lot of high skilled employees in my department that were hourly, and we wanted to be able to allow them some of the flexibility that the salaried employees had (for instance, the ability to come in a few hours late one day and make it up by staying late another day without using PTO, or the flexibility for a manager to not charge an “occurrence” when someone who had put in 3 straight 14 hour days came in 15 minutes late on the 4th day). HR wouldn’t let us do it, or made highly convoluted rules for it because “we don’t want all the factory employees taking advantage of those policies”. Nevermind that our employees were not factory employees, and while their work didn’t meet the “individually directed” aspect to make them salaried, they were often given projects that could be done at any time over the course of a week, with nothing tying them to be done only M-F from 8-12 and 1-5.

            Related, my sister was hired for a job that was salary + commission (and the commission was a really big portion of her overall income). Then the company was charged with improper exempt classification in a completely different department, and as a CYA move they converted a lot of formerly salaried employees to hourly. However, her department head put in a “no overtime!” rule, and my sister no longer had the flexibility to meet with clients on the evenings or weekends unless she had already taken a short day earlier in the week – which severely cut into her ability to get sales and therefore to meet her commission targets.

            I think if companies are reasonable and allow for things like self-reporting time (by hand or spreadsheet, etc) and allow for some flexibility (get supervisor approval if you are going to work less than 37.5 hours or more than 45 hours each week, your average should be in the 38-42 range, for instance), the shift won’t be so bad. If people that are used to salaried flexibility are suddenly hit with time clocks and micromanaging of how much overtime they are using, there are going to be a lot of unhappy people out there.

            1. Observer*

              The thing is that none of these things are required in order to be in compliance with the rules (except perhaps in California.) You don’t need to treat people who should really be exempt as non-exempt, and you can allow people to be flexible within a work week. None of this is going to change with the new rules.

              The issue of limiting flexibility for office staff because you don’t want your factory workers to take advantage of those rules drives me crazy. The reality is that different positions have different needs and different rules, and different types of positions should be treated differently. You don’t do anything to improve any aspect of your business (even legal compliance!) but ignoring that.

        2. JoAnna*

          I’m non-exempt and I telework 3x per week. I send an e-mail to my boss when I start my day, and another e-mail when I end my day. In the latter e-mail, I include the time I took my unpaid lunch break. That way there is a written record of the hours I have worked from home, so if I try to claim I worked overtime, my boss has a record of me stating the exact hours I worked that day.

          1. Stranger than fiction*

            Yeah, our web guy is hourly and works from home some days and he just logs on to adp and clocks in and out.

            1. Ask a Manager* Post author

              And that can work with some jobs. But others, the work isn’t done by logging in to a computer. It can be on the phone or in your head. I log some hours just thinking about things, and there’s no logging in associated with that.

              1. Observer*

                Sure. But the reality is that there are dozens of ways to deal with telecommuting. If shooting off an email is not a viable solution (and it may not be) a call in or text is almost certainly good enough. And, just about every automated time keeping system out there has an option to record a call in or text, as well as web based or app based log in.

                Off site work for hourly workers is not new. And, employers have figured out how to work with it. I’m not saying that it won’t require some adjustment. And, it certainly is likely to be a cost for some employers. But, I don’t see any reason to believe that it would be so difficult to do that employers would be forced to stop allowing telecommuting and / or some flexibility.

        3. Jon Hyman*

          No “required”, but, if I’m running a business and I have the option of permitting a now-nonexempt employee to telecommute (and assuming all of the time tracking headaches that go along with it), or scrapping telework in favor in the simpler time tracking that comes with in-office work, most will choose the latter, to the detriment of employees who enjoy the flexibility of telework. And, it’s not just telework, but flexibility in general. As an attorney, I’m salaried, exempt, which means that if I need to take a few hours to attend an event at my kids’ school, or go the doctor, or get my car fixed, I have the flexibility to do it. I’ll work 40 hours this week, 35 next week, and 60 the week after. I’m not a slave to the clock, but simply to getting the job done, no matter how many hours it takes. Non-exempt employees do not have that luxury, because the FLSA requires their employers to track their time worked for overtime purposes. I certainly would not enjoy the loss of flexibility, and I’m sure many, if not most, would agree with me.

          1. LotusEclair1984*

            Disagree with the assessment that “many, if not most” who fall into this category would agree with this analysis. I am speculating here, but most likely your salary is several times $23,600. For people earning between $23,600 and $50,440, these changes will be HUGE. Also, the validity of the argument hinges on the conversion from exempt to non-exempt = loss of flexibility because of + time-tracking, but + time-tracking DOES NOT = loss of flexibility. Time-tracking and flexibility in scheduling work are not mutually exclusive; it really depends on the workplace culture and the manager’s approach.

            1. Ask a Manager* Post author

              Time tracking doesn’t have to equal loss of flexibility (although it absolutely will mean loss of flexibility in adjusting your hours from week to week as work ebbs and flows), but it’s highly likely to for a lot of people, based on how many, many employers manage non-exempt workers now.

              It’s possible that this change could be accompanied by a dramatic change in how employers manage non-exempt workers, but I’m pretty skeptical that we’ll see that being the primary response.

              1. Observer*

                Actually, I think in the long term that’s likely to be a fairly common effect, as reasonable employers adjust to the reality of managing more hourly workers of a broader scope of work. In the short term, though, I can see a lot of employers falling back to rigid policies. And, of course they are going to blame rules that “force” them to follow those policies, but which really don’t.

                It’s much like employers who have stupid hiring / firing policies that they claim are “required” by law, when what is really the fact is that they are too stupid or lazy to develop policies that make sense that would comply with the law.

  7. Chelsea*

    Are there jobs that are exceptions to the exempt salary minimums or would that apply to all exempt positions?

    1. fposte*

      I’m fervently praying for a pro-rata approach to part-time exemption, but I don’t think it’s happening. This is going to be a tough one.

      1. Cat*

        I feel like that would be hard to administer. I guess you could have a range of allowable non-compensated overtime work for part time people, but otherwise, what’s to stop employers from classifying those positions as 30 hours but still requiring the employee to work 60?

        1. fposte*

          Those positions already exist, though. They’ll exist regardless of what the threshold is set at. It’s just that they’re constituted with the professional flexibility of exempt positions right now.

          1. Cat*

            Sure, but when you raise the income threshold, you create a greater incentive to game that (because now you don’t need to game it because the limitation isn’t much of one). So there’s some logic to closing that loophole.

            I don’t know whether part time positions are specifically pro rated now or if the threshold is so low it just doesn’t really matter, but I think it applies either way.

            1. fposte*

              There’s no current pro rata, and I doubt there’ll be one. I’m just hoping, because it’s going to be a mess otherwise.

    2. Kay*

      Yes, I’d love to know about exceptions for nonprofits. Because either I’m about to get a 25% raise OR I’m going to have to work far fewer hours, which…is the definition of a rock and a hard place.

      1. fposte*

        I doubt there would be any new industry exceptions, and I doubt that there’d be a solid enough lobby for nonprofits to get one even if there were.

        1. Muriel Heslop*

          What are the industry exceptions? Asking, because I assume education/teaching is one.

          1. fposte*

            There’s a bunch of weird ones–I’ll post a link in the followup. Read down to the list that includes “Homeworkers making wreaths” and “Sugar processing employees.”

              1. Not the Droid You are Looking For*

                Off-topic, but…fposte, I just wanted to tell you that I really appreciate all of your comments and the resources you provide!

                1. fposte*

                  I’m glad! I love to dig for these things so I can learn, and because you never know what you’ll find (home wreath makers, for instance!).

            1. Rob Lowe can't read*

              Please excuse what may be my poor reading skills (thank goodness it’s spring break), but are you getting this information from the link fposte provided or elsewhere? I’ve been quite curious about this.

              1. doreen*

                Will post a link separately , but I got to it by clicking from fposte’s link. Although I was surprised that teachers are exempt from the salary and salary basis requirements , I was really surprised that driving instructors are included in the exemption.

          3. Megs*

            Depending on where you live, state employees may also be excepted, which can count for a ton of people.

      2. Observer*

        No exceptions for what anyone can see.

        No one’s budget is going up, by and large. So, what we are going to see, imo, more non-profit staff working “off the clock.”

        I know it’s illegal. But, when government agencies act in ways that make this seem to be the only reasonable choice it’s not surprising.

        1. fposte*

          This is going to make my life a total PITA, but I don’t think the government agency is doing wrong here. What was formerly a significant and legitimate difference between categories has been eroded to the financial detriment of a lot of workers. The solution wouldn’t seem so drastic if the problem hadn’t been neglected for so long.

          2. Mike C.*

            Yeah, when you see fast food managers who are “exempt” but whose duties are 80-90% of what a normal non-exempt employee perform but are making peanuts things have to change.

          4. Observer*

            I agree that the DOL is probably doing the right thing, although I would have argues that it should have been phased in.

            That’s was not what I meant. I meant that the agencies that fund or oversee a lot of non-profits often have policies that put organizations between a rock and a hard place in terms of how they handle many situations. An example in this context is “we are giving you $x for y hours of case work. And even though your hours are now hourly, we are not increasing your budget.” or “Overtime payments are never acceptable expenses and will not be reimbursed” or even “Overtime payments will significantly reduce your rating in our vendor scoring system.” (Considering that those ratings are life and death to many agencies, this is not a small thing.)

        2. Jadelyn*

          Making employees work off the clock in order to avoid paying either overtime or a decent wage is only the “only reasonable choice” if your definition of “reasonable” includes exploiting one’s workers.

          And I say this as someone in HR, in a nonprofit organization, who has been responsible for calculating and analyzing the potential financial/classification impact of the new rule for our exempt staff, and the wording regarding exploitation comes straight from my VP’s take on the subject. So, y’know.

          I get that there is a definite budgetary impact, but I don’t think it’s at all unreasonable to say that people who are being expected to work 50-60 hour weeks should be compensated fairly for that work, whether it’s via a higher salary or by being eligible for overtime. The existing rule allowed gross exploitation and while adjusting is definitely going to be a headache, this is about making sure people are fairly compensated, period.

          1. Observer*

            I agree with all of this.

            However as someone I respect said “People seem to think that people who work in poverty programs should live on poverty wages.” This includes a shocking number of funding agencies. They don’t put it that way, but that’s what comes out of the conversations.

            Also, unfortunately, a lot of non-profits actually do seem to think that it’s ok to exploit your staff in the name of the mission. (Project Smile isn’t the only one.)

            Fortunately, people like your VP are becoming more common and more vocal. Also, there is beginning to be a realization in some quarters that professional management matters. And managers who are smart, competent and ethical do get it. I hope that with time, we’ll reach a point where funders stop asking for the moon, which will reduce the temptation for the rest of them to do the wrong thing.

          2. Observer*

            One other thing. I think that situations where people are going to be pressured to work 10+ hours a week of the clock are likely to be rare. But, I do think that under the current rules that many funders impose, 2-3 a week extra off the clock is likely to be common. At least in some cases that I know of where things like this happened, the boss tried to make up for it by giving a year end bonus. (In a rational world, it wouldn’t be necessary, as the pay would have shown up clearly and timely. But at least the boss is trying to do the right thing.)

            Hopefully, the discussions around issues like overhead will lead to some rethinking of the kinds of rules that create these dilemmas.

            1. Jadelyn*

              That last sentence is the key, for me – as things stand now regarding our usual cultural attitude towards wage&hour issues, the new rule will create some serious headaches. But hopefully, those headaches will prompt a shift in how we think about those issues!

      3. Sophia Brooks*

        Yup- this is my situation as well. I don’t think I am going to get a raise, and I am going to lose my privileges of coming and going during slow times, which working a lot over during big times.

          1. Aunt Vixen*

            Because if she doesn’t get the raise she’ll be reclassified as non-exempt and have to track her time and overtime may not be authorized.

            1. Mike C.*

              But that doesn’t stop an employer from allowing someone to have a flexible schedule. That’s what I’m confused out. Yes, hours will have to be tracked, but so long as your employer agrees it doesn’t generally change when those hours have to be worked (places with per day overtime excepted).

              1. Ask a Manager* Post author

                Employers will be able to find ways to do it (to some extent — but not to the extent people have now re: things like adjusting their hours from week to week). But whether they will or not is a different question; some will, some won’t. For some people, this change will be great. For others, it will suck. Just depends on context.

            2. Jadelyn*

              I’m non-exempt and still have a flexible schedule based in business needs. Being non-exempt only means that your hours have to be tracked and OT paid for, it doesn’t preclude flexibility.

              1. doreen*

                But it does limit of flexibility. I once had an exempt position where my required hours were 150 hours per 4 week time sheet. (37.5 hours per week) How those hours were divided over the four weeks was up to me, as long as my work was done. If I worked 15 extra hours in one week , I was free to work 22.5 hours (3 days) in another week. Or work 30 hours (4 days) in two other weeks. It didn’t cost my employer anything to do that, and I took a lot of days off without using my accrued leave because of that flexibility. Non-exempt employees didn’t have that much flexibility – they were required to either work or use leave for 37.5 hours in each individual week. Their flexibility was limited to 1) same week schedule adjustments or 2) working 40 hours and earning 2.5 hours of comp time.

                1. doreen*

                  And the reason theirs was limited was because FLSA doesn’t allow the flexibility I had for non exempt employees- if they worked 52.5 hours in one week , they had to be paid time and a half for 12.5 of them. It’s not illegal to pay you time and a half for those hours and also let you take those hours off with pay in another week – but no employer would.

        3. Sophia Brooks*

          Because my university has a no overtime policy that I doubt they will change, so if I want to make the same amount of money (not less) i need to work exactly 40 hours each week. I could still be flexible within the week, but the way my job works, I have slow months and busy months.

        1. Jadelyn*

          Which is a problem of unrealistic employer expectations borne out of a poorly-designed law with an antiquated salary threshold, which allowed employers to exploit their exempt employees. The updated rule isn’t the problem. Employer expectations of getting 60 work-hours a week for poverty wages are the problem.

          4. Mike C.*

            Exactly. Employers who abuse these rules have been getting a huge benefit, and now things are swinging the other direction.

          5. Observer*

            This is true. But the reality is that the people who are the most likely to suffer from the disruption are the people who are the least likely to be able to afford it. Eventually, it will work out. But, honestly, if the DOL could have found a way to phase it in, they should have. At least they have now included and index that should keep this kind of disruption from happening again.

    3. Is it spring yet?*

      Not for any regular/typical type jobs that I know of. But there is an exemption for seasonal jobs. You have to pay for all hours worked but you don’t have to pay time and a half for those over 40 a week.

      1. Megs*

        I worked at a sleep-away camp one summer – I think we worked out that after room and board, we made maybe $2/hour. We got one one-hour break a day and were on call all night.

      2. i'm anon*

        This exemption does not apply to ALL seasonal workers, but to seasonal workers of e.g. amusement parks: “any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year.” (http://www.dol.gov/whd/regs/compliance/whdfs18.htm)

  8. Boop*

    Question about the change in overtime exemption – my understanding is that an employee must meet the definition of exempt as set out by the FLSA, AND have a salary that exceeds the minimum to be exempt from the overtime requirement. If this is correct, what would be the effect for an employee whose job is exempt according to the FLSA parameters, but whose salary is less than the minimum?

    1. Natalie*

      Yes, that’s correct, and those workers you describe are the main target of this change. Employers will either have to raise the person’s salary to the new threshold or re-classify them as non-exempt.

      1. Kay*

        Ah, thank you, I should’ve read further down for the answers to my questions. So…I guess I’m either getting a raise or becoming non-exempt?

        Are there any exceptions for nonprofits built in?

          1. Granite*

            I had researched this a bit for a friend, and my understanding is that there is an exemption for public school teachers. It was broader than that, but I forget the details.

              1. neverjaunty*

                They’re only teaching our children, for crying out loud, why on earth should we pay them real money?

                1. Mike C.*

                  But but but they should be teaching for the ~*~ love of teaching ~*~, not for the paycheck!

        2. Zephyr*

          I don’t think non-profits have a built in exception. There are teaching exceptions for secondary and elementary teachers that are being kept as far as I know. Teapot U, where I work, has no money for overtime and has said they likely will treat any newly non-exempt like our hourly staff are currently treated. They will have to keep a time sheet and will get comp time instead of overtime.

          2. Muriel Heslop*

            Sigh. I figured. My first year of teaching my colleague and I calculated we made about $1.60 an hour. As English teachers, the amount of time we spent grading papers was crushing.

          3. Sue Wilson*

            ….Comp time is still illegal. You cannot give comp time in lieu of overtime if you’re non-exempt.

            1. TempestuousTeapot*

              Unfortunately, try telling that to ever state level public agency. It’s how every one of us non-exempt employees receive over hours compensation, and at a one to one ratio at that.

                1. BettyD*

                  My related question is: we’re a state agency that currently pays out OT in comp time to our exempt employees at 1:1. We don’t currently pay out comp time to non-exempt employees because they’re all part time workers who don’t make it to OT, but it’s in our policy manual that it would/should be paid out at 1.5/1 if necessary. If we have to reclassify several of our full-time employees as salaried, non-exempt due to this change, would we still pay out OT in comp time at the appropriate rate, or would we have to switch to actual cash?

                2. Ask a Manager* Post author

                  You’d have to switch to cash, unless they take the comp time in the same week, thus keeping their total hours that week at 40 or less. But state government often plays by different rules, so it would depend on that too.

              2. Emily, admin extraordinaire*

                It’s supposed to be at a 1.5/1 ratio for non-exempt employees (exempt can earn in 1:1 ratio), but it is legal for state agencies to offer comp time instead of overtime. Link to documentation in next comment.

            2. Emily, admin extraordinaire*

              Except for governments. I work for my state government and am non-exempt, and I earn comp time in increments of 1.5 hours for every overtime hour. It’s an opt-in system, though– I have to choose comp time over pay. Not sure, but a state-owned university could be able to operate under the same rules.

  9. The Strand*

    Amazing to hear that about the exempt changes… this could be very good for some people who are being taken advantage of for relatively little pay.

    The obesity thing, though… That’s troubling. Obesity is often a signifier of something else going wrong – insulin resistance for example, but in the popular mind, it’s completely under the control of people who just need to stop overindulging. This court decision sounds like it’s upholding that mindset – the burden of proof is on a fat person to prove they’re fat “for cause”.

    Let’s say someone is turned down for a promotion because they’re overweight, and they’re told that “fat doesn’t cut it in the C-level suite”; they then have to prove that there’s a reason they’re fat, in order to have it be discrimination?

    1. Granite*

      And how do you determine cause and effect? Do they have diabetes because they are overweight, or are they overweight because they have diabetes? Seems like an impossible rule to enforce.

      1. The Strand*

        There are at least 20 medical and health science journals dedicated just to obesity; because researchers and health professionals themselves don’t know exactly which is cause and which is effect…

    2. fposte*

      In order for it to be discrimination based on disability, yes.

      And I kind of get it. “Things being wrong” isn’t the same as a disability. I have a lot of things wrong with me that aren’t disabilities. I get with the substantial number of overweight and obese people in the workforce that we’re looking for ways to make sure people get a fair shot, but I don’t think the ADA really works as an anti-fatphobia tool. (This isn’t the first decision like this, btw, so it’s not just this court.)

      1. pieces of flair*

        Right. Obesity isn’t a disability; it’s physical appearance. You can discriminate against me for being fat just like you can discriminate against me for being short/blond/freckled. Whether size should be a protected category is a different issue.

        1. fposte*

          Yeah, that’s where I am. Maybe there should be protection, but I don’t think the ADA would be the place for it.

          1. Anxa*

            I take issue with the implication of obesity as pathology. Obesity can be linked to disabilities, but I feel like those disabilities should be protected, not being fat. Lots of fat people are healthy. Lots of fat people are not healthy but not disabled.

            This cause vs linked language seems odd to me, because I would think that the cause wouldn’t matter so much as whether or not someone can work based on the reality of their bodies at present.

            I think there’s an argument that anti-obesity sentiment makes it hard to find work, but that seems more like a general discrimination issue.

            1. Anxa*

              That said, if accepting obesity as a disability is what it takes for a worker to have appropriate chairs or uniforms or other accommodations, then that would probably change my view on this.

              1. Countess Boochie Flagrante*

                Yeah, that’s where I’m really concerned too. Like hey, it’s nice to not be pathologized as inherently disabled, but can I have a chair that doesn’t make ominous creaking sounds whenever I shift my weight?

                (I’ve asked. The answer is no.)

          2. fposte*

            @Anxa–I think that was something the court was negotiating too. The plaintiff had made a big point of saying that he’s overweight but completely healthy, and that’s why he shouldn’t be precluded from this job. And the court said that if he’s healthy, the ADA doesn’t cover him.

            1. TL -*

              Yup. If you’re claiming a disability, you’re stating that whatever they’re accommodating is an illness of some sort. If so, there should a) be treatment or at least people looking for treatments and b) an attempt to alleviate the condition by your medical team. If you don’t think a and b apply to obesity, then the ADA probably doesn’t either.

              1. fposte*

                I was also reminded of the pilots, twin sisters, who sued an airline who wouldn’t hire them because of their need for glasses. They had sued under the ADA, and the court basically said that you can’t use the ADA as a cause to claim you’re not disabled.

            2. I've read that study!*

              This is what I find interesting about this whole thing. Anyone who works with regulation knows it all comes down to the definitions. The reason the Amendments Act was added to the ADA was to shift the focus from specific disabilities to accommodations (and why the whole current hubabaloo about whether obesity is now a disability). In the end though, ADA still only applies to disabilities. This just shows where the AA still falls short. Employers should focus on whether someone can do the job if they make a reasonable accommodation, not whether someone is disabled. This would end discrimination of a lot of types, but it’s hard to write a regulation that actually works that way.

              1. fposte*

                Yeah, the ADAAA was a game-changer in a lot of ways, and I’m still far from up to speed on how. But it looks like this isn’t being considered one of the ways.

    3. Anonyymous*

      I’m also curious about the obesity thing too.

      Like if someone is so big that it interferes is with one or more daily living activities, but docs can’t find a cause, does that mean they can’t prove it’s a disability? Because often weight at that kind of level requires a medical intervention like WLS to come back from.

      Or how about caused by an eating disorder? Is that going to make it a disability? Or is the stigma of mental health issues also going to make it insufficiently ‘medical’?

    4. Katniss*

      Agreed. On top of that (and please everyone, I do not believe this phrasing one bit, just using an example of stereotypical thinking about it) even if obesity is “their fault” that person still faces problems with their ability because of it. They still need help. Maybe I’m sensitive to this as a recovering addict, but telling someone “you brought this on yourself, so you deserve no assistance” is incredibly cruel and not very forward thinking.

      Also, what Granite mentioned is important. How to you determine “cause”?

      1. TL -*

        But you can discriminate against someone in the workplace for being an addict legally while still providing societal supports.

        1. Countess Boochie Flagrante*

          Actually, no you can’t. You can take action against someone for showing up to work drunk/high/etc, but not for the simple presence of addiction in their lives.

          1. fposte*

            Well, you sort of can, actually, as we discussed earlier this week. You can discriminate against somebody for illegal drug use for a surprisingly long time–like, you can fire them upon their return from rehab.

        2. Katniss*

          Depending on how you’re discriminating, yes. My stance is more about morals than legality.

        3. Anony*

          I believe the rule for drug/alcohol addiction being treated as a medical condition is that if the addiction is occurring presently it can be fireable, but not if it happened in the past.

    5. hugseverycat*

      I don’t think that being fat is a disability, but I’m also troubled by this. Not only for the reason you mentioned, but because companies all over the place seem to be very interested in saving money by penalizing their employees for various things like their weight, whether they smoke, etc., by way of charging them more for health insurance (which, in my mind, is virtually indistinguishable from paying them less). I think fat people need protection from somewhere.

        1. The Strand*

          Smoking is an activity; it’s hard to break with that activity/habit/addiction, but there is an element of choice at the beginning.

          People can’t choose not to eat; that’s why eating disorders are so difficult, because unlike alcohol or drugs, you can’t choose to spend the rest of your life abstaining from eating. (Unless you want the rest of your life to be pretty short.) And what will you eat? There’s no proof that any one diet (paleo; Ornish; vegan; Atkins etc) is the answer for the entire population. There’s some preliminary research being done to find out why some people have more of an insulin response to a banana than to a cupcake, and to see if we could drill down deep to the genetic coding that makes one food healthier for you than for me.

          One of the theories is that obesity has much to do with modern life: hormones and chemicals in our water, food supply and air that trigger inflammatory responses, air conditioning that overcompensate for our innate “cooling” systems, less walkable cities and towns. If this is true – and there’s evidence on this – then that would mean health insurers could be unfairly dinging people in “food deserts” with poor public transport. This would seem to be borne out by the recent news that poor people in liberal, more centralized cities like New York and San Francisco, tend to live longer than those in other major cities.

        2. alter_ego*

          I mean, women get pregnant more, but I don’t think we should pay more for health insurance.

          1. Faith*

            That’s why women pay way more than men for long term disability insurance (if you were to buy one on your own, not through your employer). Because of a risk of pregnancy/labor complications that can have a lasting effect, women are considered a higher insurance risk. Men, on the other hand, pay higher life insurance premiums because statistically women tend to live longer.

          2. Mreasy*

            Also until very recently, women in many (most?) states could and did have to pay more for health insurance. A LOT more!

        3. TL -*

          …it’s complicated.
          How much risk does a behavior have to incur before we can charge more for it on health insurance? For instance, if you eat fast food every three days and this keeps you slightly overweight with elevated blood pressure, but you are otherwise perfectly healthy, should we increase?
          What about if you’re into extreme sports, like base jumping?
          What if you’re at a higher genetic risk for heart disease and you could lower that risk by eating vegan but you choose not to?
          What if you spend two or three hours a day in a car? That’s probably one of the biggest risk factors for a hospital stay but we don’t penalize for that..

          1. pieces of flair*

            Yup. Getting inadequate sleep is a *huge* (and hugely underrated) health risk, but we don’t charge higher premiums to people who choose sleep less than 7 hours per night.

          2. hugseverycat*

            Not to mention the fact that the dividing lines between “normal” weight, “overweight”, “obese” etc are arbitrarily drawn and are determined solely on a ratio of height and weight. We’ve all seen pictures or heard stories of extremely physically fit people like bodybuilders or actors who are “obese” based on the BMI scale. The lines can be redrawn at any time (and they have been in the past: http://www.cnn.com/HEALTH/9806/17/weight.guidelines/) making you suddenly in a different category.

            And these categories are what companies use to determine who has an “unhealthy” body size. Isn’t that messed up? How is that fair?

            And let’s not even get into the fact that a meta-analysis concluded that people in the “overweight” categories may actually have better health outcomes than those in the “normal” weight category (http://www.cnn.com/2013/01/02/health/overweight-mortality/).

            But even so, at the end of the day, healthy or not, we are all people who deserve to be treated with dignity and respect. My compensation at work should be related to my *work*, not my health status.

            1. .*

              I know there is a TON of misinformation out their about weight issues. There is also alot of new information being discovered daily about how different bodies react to different diets. As a nurse I’ve even had came across information where I’ve had to verify sources or do further reading to understand some of the information in studies. I don’t want to single anyone one comment out but d it’s helpful to you or others this is one of the big misunderstandings of the BMI. The BMI dosent account for various things but overall it is a much better tool at identifying where weight becomes a major risk factor for health problems then mainstream media gives it credit for these days. The comment about knowing of famous people who would be considered obese while being very fit/muscular is an example often used to dismiss the idea that people with higher BMIs should be concerned. Arnold Schwarzenegger for example would be considered “obese” by the BMI but those people are truley the outliers. Arnold didn’t get like that overnight. Countless hours were spent at the gym, he’s rich and has a personal chef, he has amazing genetics, he’s worked with the best in the sports medicine field to perfect too of the line work out plans for him. It’s rare if not impossible for someone who dosent devote a huge amount of time to fitness/nutrition to score “too high” on the BMI while still maintaining a low percentage of body fat. Muscles are built. Some people are lucky enough to be able to build them faster and/or with nutrition being less of a factor but IV never know of anyone who was able to score “overweight” on the BMI due to low fat/lots of muscle who dosent actively pressure it. It’s kinda like women being scared to lift weight because the don’t want to bulk. Have you ever seen a body builder who lifted 5 or 8 ponds weights? I can provide sources if anyone would like to read further about this.

        4. the gold digger*

          Group insurance is not individually underwritten. That’s the whole point of it. For one person who wants an individual life insurance policy, sure – factor in smoking.

          But group insurance pricing is based on the census (age and sex) and experience (claims history) of the group. You don’t get to charge members of that group a higher premium just for certain characteristics. The rates are set for the group as a whole.

          1. hugseverycat*

            I agree that you shouldn’t get to charge members of the group a higher premium, but the fact is that you actually *do* get to. (You probably know this but I feel its important that it be said anyway!) It is totally legal to charge people more for health insurance if they do not meet certain “wellness” measures.

            1. asteramella*

              Yes, participants in employer-sponsored group health plans can be charged up to 30% more for not participating in (or meeting the goals of) an employer-sponsored wellness program, or for smoking.

              The wellness program is required to have alternative ways to meet goals to satisfy ADA requirements (e.g., the wellness program can’t require you to run a marathon to hit all the goals/get the discount if you’re, say, quadriplegic; you have to be able to complete an alternative goal so that you can hit the goals and get the discount, just as an able-bodied person could).

              1. the gold digger*

                But the smoking information is not used in setting the initial rates. The decision to implement a wellness program is at the employer level.

                The employer does not send a census to the insurance company noting that Bob in Accounting smokes, Sly in the mailroom drinks at lunch, and Lindsey in sales just got married and is already talking about having a baby. The rates are set by age and sex (so a company with a lot of young women is going to have higher rates than a company with a lot of young men) and, depending on company size, by the claims history.

                Would someone who knows more about wellness programs than I do explain if you actually have to do the stuff they say to get the rate reduction or do you just have to complete the survey and have the physical?

                I don’t even answer the questions on the survey – they are none of Blue Cross’s business, but I got the discount.

                My boss made the mistake of answering honestly. He smokes a cigar about once a month – when his wife is out of town – and admitted that on his survey. He started getting nagged to take a smoker cessation class! Our HR told him to ignore BC – that they were not supposed to be doing that.

                1. Miles*

                  I smoke less than once a year (i.e. there’s at least a full year between cigarettes) and the last three or four times I’ve been to the doctor I’ve told them that. I don’t know why that somehow makes me a smoker but some think it does, despite having no detectable effect on my health at that frequency.

        5. hugseverycat*

          Athletes have more health problems, too. My coworker who plays volleyball competitively takes way more health-related time off and visits the doctor faaaaaaaar more often than I do now as a fat person, or than I did when I was a smoker.

          1. TL -*

            That depends on the athlete, the sport, and the level of competitiveness. A pro hockey player is going to get a lot more medical attention than a pro tennis player, who will probably see the doctor more often than an amateur soccer player. (And all three are less likely to cause a chronic condition that requires anything more expensive than PT and pain pills/muscle relaxants, with maybe a few surgeries thrown in for extreme cases. All of that would be cheaper than a lot of chronic conditions associated with obesity or long term smoking.)

      2. Argh!*

        An ADA accommodation for an obese person could be something like a stronger or wider chair. That would be a reasonable accommodation, but without the ADA definition of obesity as a qualifying issue, the person might be required to pay for a better chair herself/himself.

        1. Countess Boochie Flagrante*

          And a chair that will properly support an overweight person (meaning, not just squeaking past the weight tolerance, but actually being able to handle things like abrupt sit-downs, shifting weight, etc) for 8 hours a day 5 days a week is likely to cost significant money.

          1. Sorry But*

            I agree that an obese person should have to pay for their own chair. The employer shouldn’t have to pay the additional costs as a result of the person’s obesity – unless, like stated in the ruling, the obesity is caused by some other issue that is protected against ADA. As long as they provide all employees with a reasonable chair, if a person determines that chair to be uncomfortable for them they should have to pay for a different one.

            Said by a person who weighs 120 pounds but still shelled out 2k for a GREAT office chair because I found that it was more comfortable than the standard issue one. Yes, expensive, but I’ll have it forever as long as I don’t break it. (I made sure my name is on it in multiple places so if I ever leave the company and my immediate manager who approved the purchase has retired I can prove it is actually MINE not the company’s).

            1. hugseverycat*

              Comments like this perfectly illustrate why body type and size need to be protected. Fat people have to buy their own office equipment? Ridiculous. “Sorry but”, your apology is not accepted.

            2. Katniss*

              And if that “reasonable chair” is only reasonable for slim people?

              May I ask why you felt the need to state your weight in your comment?

            3. Argh!*

              But what if you weigh 300 lbs and aren’t being paid enough to buy a stronger chair? Should you have to quit your job rather than risk sitting in a chair that can’t support or fit you?

            4. anonifull*

              I agree with you. Companies shouldn’t have to pay more to supplement something that someone has done to themselves, and yes, most fat people have made themselves that way, even if they don’t want to admit it.

              3. Undine*

                As a child, the quality of your food and your eating habits are determined by your family and circumstances, and childhood obesity has a huge effect on your ability to lose weight later.

            5. QualityControlFreak*

              You actually sound more smug than sorry to me. I weigh 120 lbs too. On a good day (I struggle to keep weight on). I have a friend in great physical condition who is a foot taller than I am and weighs over twice that. He’s not obese; he’s muscular/athletic. What he is, is big. He did not make himself that way. *People* come in different sizes. Employers who employ *people* should provide equipment to accommodate that fact. It’s super great that you were able to buy yourself an expensive, cushy chair. I hope you enjoy it. However, many of us do not have 2K to spend on a luxury item for work. We still deserve for our employers to provide safe, functional equipment of an appropriate size and composition.

              Oh, I’m aware that’s not reality. But it should be.

    6. snuck*

      For me it’s in the wording “obesity that isn’t linked to or caused by an underlying medical condition”

      If there is no link at all to a medical condition then it’s not a disability.

      I’m interpreting (possibly wrongly) this to mean that if a person is obese they don’t get special dispensations… but if they are obese and have crook knees, or dodgy blood pressure, or other medical issues, then they are able to get the dispensations that a disabled person might (maybe only so far as relates to their actual medical condition? Not their obesity?).

      I’d say it’s a rare person that doesn’t have a medical condition that is related or compounded to their obesity… and in this frame I’d suggest the law is actually going to give protection to people who are obese, possibly forcing them to out their other conditions (protecting both them and the employer by doing so), where in the past obese was just considered obese, now employees have the right to speak up, say “no, this isn’t just me being fat, it’s actually about X and Y conditions and I need dispensation for that” and employers actually having to pay attention.

      But maybe I’m an optimist

      1. doreen*

        I think you are interpreting this correctly- the company wouldn’t hire people with a BMI over 40 for certain positions and revoked a conditional offer of employment due to this. There are two types of people the ADA protects- those with current disabilities and those perceived to be currently disabled. The plaintiff took the position that his weight did not cause any limitations on his activities, that there was no underlying condition that caused his obesity, and that he had no medical conditions caused by his obesity. He basically said he wasn’t disabled in any way, which makes it hard to find that the company discriminated against him on the basis of a disability. The other way he could have won was to prove the company perceived him as having a current impairment – except that his position was the company perceived him to be at higher risk for futurehealth problems. It’s as if I filed an ADA claim because a company didn’t hire me because of my height , and my height wasn’t due to any medical condition, didn’t cause any medical conditions and didn’t substantially limit my activities.

    1. pieces of flair*

      The linked article actually says the obesity has to be *caused* by a medical condition, not just linked to one. So it would be fine to discriminate against an obese employee with diabetes if you believe that the obesity caused diabetes. This seems like a policy nightmare since the science on cause and effect is far from clear.

        1. Sorry But*

          I’d say if they’ve had weight problems their whole life and the health issues arose later in life then the health issues ~linked~ to the obesity are not caused by obesity. Like, there’s a guy in my office who’s always been very overweight, and always has at least 3 donuts for breakfast each morning. He found out a couple of months ago he has diabetes, but was overweight long before the diabetes arose.

          1. Yup*

            Yea there’s a guy in my office whose always been really overweight and found out he has a bad heart or something linked to his obesity last year. But he was obese before it developed.

    2. fposte*

      I think there’s a difference, ADA-wise, between a medical condition and a disability. Hypothyroidism generally isn’t a disability. What I suspect they’re really talking about is “I gained 100 pounds after I broke my back and had to use a wheelchair.”

      1. fposte*

        Okay, looking at the decision I take it back–their reasoning is less clear than that to me.

        (Though hypothyroidism gets brought up more than it actually deserves when it comes to obesity; it’s almost always correctable, and the research suggests that the weight gain is pretty small and evens out quickly after correction. A lot of people get hypothyroid as they’re getting to aging body changes anyway, and also I think people just find it hard to realize just how difficult it is to lose weight even when there’s no underlying health problem and can’t believe there isn’t one.)

        1. The Strand*

          Got to quibble with “correctable” – according to my endocrinologist, hypothyroidism is a slippery slope that actually progresses with age, even if you’re treating it properly. You pretty much take synthetic thyroid hormone for the rest of your life, it’s a matter of how much.

          1. Countess Boochie Flagrante*

            Yeah, I’m with you on this one — and it’s not always an aging issue. I attended school with a girl who suffered from severe hypothyroidism, and she was… well. Large enough that she seemed pretty permanently miserable in her own skin.

            Plus, “correctable” (at least in the US) always comes with a very significant caveat of “if you have the money.”

            1. fposte*

              Right, synthetic hormone is what I meant by correctable. As medications go, it’s low impact and low priced, and it’s pretty easy to calibrate with blood tests.

              1. Anon w/ Hypo*

                This is true and I am very thankful for reasonably priced medication. Unfortunately the simple blood test costs me a day and a half’s gross wages each time, so even when I don’t feel great I’m hesitant to retest and calibrate. Also, my Dr says the brand name synthetic hormone would actually work much better for me because it’s more stable, but my insurance won’t cover it because the generic exists.
                /rant
                fposte, I realize none of these things are your fault. It is not my intention to be negative towards you. I hope your hypothyroidism isn’t negatively affecting your quality of life.

                1. fposte*

                  Right, like all medical care, it can cost you. But it doesn’t cost you the way cystic fibrosis or type 1 diabetes could cost you.

                2. Pearl116*

                  {off-topic!} Anon w/Hypo: would your insurance accept an appeal: a pre-authorization-type explanation from your endo or PCP stating the brand name would be the most effective (or tolerable) treatment for you? That worked for me, though perhaps that was due to the insurances involved both times we appealed the rejection of the brand name. When Levoxyl was discontinued in ’14, I was left with the generic option, an option that actually negatively impacted my hormone levels. Upon appeal, which did take a week or so of rounds of faxes, both insurances both times approved the Synthroid. It may be worth a try.

              2. Terra*

                Speaking as someone who has Hahimotos that causes hypothyrodism and insurance that meets the mandatory minimums set under the ACA I can easily burn over $600 a year on blood tests and medication to manage my disease and that’s a year when nothing changes. If my numbers do change then I need a blood test and possibly new prescription as much as every 2 months. Not to mention that Hashimotos, the most common cause of hypothyroidism in the world, is cyclical so your levels naturally fluctuate. The overall trend is downward but some months you can read high and some low depending on where you fall in the cycle. How much weight gain, or loss, results also depends on your personal metabolism, the cycle, and how the disease affects you.

                My doctor was one of those “hypothyroidism doesn’t cause much weight gain” until I hit a bad eight month low period and put on 20lbs while eating 1000 calories a day or less. Weight gain is far from a science, even for doctors so some lawyer getting to say “you can’t prove that this is a disability so you don’t deserve a uniform that fits” is a huge problem.

            1. fposte*

              Sometimes deliberately, in fact, because removing or ablating the thyroid is a common treatment for thyroid disorders.

          2. TL -*

            I’m hypo. I gained 8 lbs over a year – which was a lot for me, since my weight had been stable for nearly a decade – and dropped it after I got on meds; been stable since.

        3. Anon w/ Hypo*

          As someone with hypothyroidism, I both agree and disagree with you here. It could be considered “correctable” in that it can be treated, but it is not “correctable” in that it will ever be over. I will always be on medication, and even with that, so far (4 years in, 3 years of very good, consistent test results) I expect to always have some symptoms continue or flair up, and it varies quite a bit from person to person.

          The weight that I put on *rapidly* when I was not yet property diagnosed (for well over a year) stopped as soon as good began treatment, but it didn’t undo itself. So unfortunately I am now, again, someone with a very stable weight, but it happens to be much higher than it was previously. While I certainly can contribute to my own weight problem, even with proper treatment I will also never have the metabolism of someone without hypothyroidism.

          1. fposte*

            Right, I’m using “correctable” rather than “curable” for a reason. Synthetic hormone is a reliable correction for the majority of hypothyroid people, just as glasses are a reliable correction for the majority of myopic people. As you say, people may gain more weight while they’re hypothyroid, but the range is generally 10-30 pounds, according to the American Thyroid Association. Obviously there are outliers, but it’s really not that common as a cause of obesity on its own.

        4. I've read that study!*

          Not my experience with hypothyroidism. My experience is you get to take levothyroxine every day for life, but none of the symptoms of the disorder ever actually go away. So I still have exhaustion, weight gain, numbness in the limbs, and dry skin, but hey, at least my TSH is in the right range now.

          1. TL -*

            :(
            on the other hand, all of my symptoms disappear as soon as I get on the medication (within 1 week) and promptly reappear within a week of stopping them. So it really does depend.

          2. Julia*

            I hope this doesn’t come across the wrong way, but are you sure your TSH, T3 and T4 are in the right ranges? Some doctors seem to use old lab ranges, and it seems that only recently, the knowledge that most people fare better with a TSH under 2,5 (and not just under 4 or so) and T3 and T4 in the upper percentages of their ranges.
            If you know all this, I’m sorry and hope you’ll feel better at some point.

        5. Jessen*

          I actually have a family member who doesn’t metabolize the synthetic hormones at all. He’s hypo, not hyper, but I would imagine the same thing could occur.

  11. Natalie*

    Now, can we get that exempt threshold pegged to CPI or something? Minimum wage, too, for that matter.

    1. fposte*

      Honestly, it’s easier on both employer and employee that way. If the threshold had been moving along the whole time this wouldn’t be the sudden crisis that it’s going to be.

      1. Mike C.*

        Exactly.

        Though businesses shouldn’t panic as much as we all know they’re going to. Higher wages (especially at the bottom of the pay scale) drive demand.

    2. Observer*

      I think that the new rules are supposed to peg the threshold to CPI or something like that.

      1. Pwyll*

        I’m fairly sure the proposal still has it that the threshold will increase automatically each year to the 40th percentile of weekly earnings for full-time salaried workers (I imagine as established by the Bureau of Labor Statistics).

        1. Catbert is my hero*

          Note that historically the level has been pegged to the 20th percentile of weekly earnings for urban workers. So the new regulations double the percentile, and do not reflect different wage levels outside urban areas.

  12. NarrowDoorways*

    Not gunna lie, I went straight to the office manager at my work about the salary/overtime issue. Our company just released an updated employee handbook that mentioned overtime was expected and no week should be less 40 hours.

    Now, I’ve been putting in some long days since my promotion, also working evenings and weekends, but I certainly don’t make 50k a year. That will not continue if anything comes of the new federal rules.

    The office manager said upper management was aware of the proposed changes, but didn’t think (like myself) that anything could happen as early as this year. We’ll see….

  13. Anon for this*

    I’m a little concerned about these pay changes. I’m currently exempt and my salary is around $40,000 (my job is a cross between administrative and professional tasks). I have occasional times of year where I do overtime, but it’s never been onerous so it was never a big deal (I would take “comp time” essentially, i.e. come in a little later than usual or leave a little earlier). I don’t have to clock in and out. I don’t have to use PTO for appointments and things like that, I just manage my tasks to work around them. I set my own start/leave times for my daily schedule.

    I HIGHLY doubt my employer is going to raise my salary (my company hasn’t even been able to give COL raises in four years), but now I feel like I’m about to lose some of my autonomy. If I’m understanding this right, I’ll likely be changed to non-exempt and will have to start clocking in and out to make sure I’m meeting my 40 hours every week, even though a huge draw of this job was the flexibility of NOT having to clock my hours and I could set my schedule as I needed it. Am I completely misinterpreting the likely outcome?

    1. I'd Rather Stay Exempt!*

      I’m in the same boat. I make only around 36K (low cost of living area and good benefits, so it’s not as low as it might seem) but love my flexibility and autonomy. I’m actually dreading this change.

    2. Charlotte Collins*

      This is very likely. My company has already started this. In addition, some of us have lost a bunch of our benefits (my company has different benefit structures based on the three different types of employee classification).

    3. Ask a Manager* Post author

      Yes, that is correct. Many people are reacting to this like it’s exclusively good news, but it’s actually going to have a number of disadvantages, like the one you described. People who are used to flexibility will lose it, and it’s going to really decimate some programs of nonprofits.

      1. Mike C.*

        How is the need to clock hours preventing someone from being allowed to set their own schedule?

        1. MaggiePi*

          I agree with you that is doesn’t have to mean people can’t set their own schedule. Sadly, many employers may decide to do so anyway, either out of ease or ignorance. Hopefully good employers will still be very flexible when it makes business sense.

          Also the greatest flexibility they can allow is more limited with non-exempt. As in, they cannot allow you comp time between weeks (and I think in California they can’t even between days) without having to pay the overtime. So they could let you work 9-5 one day and 10-6 the next, but not take Friday off and work 48 normal-wage hours next week (assuming workweek is M-F).

          1. Crystal Vu*

            You’re correct, nobody can take off Friday this week and work Monday-Saturday next week without OT requirements kicking in. California does have something called “make-up” time which would let a non-exempt worker work 10 hours one day and 6 hours the next day, BUT that has to be planned ahead of time and should be well-documented (a form is fine).

            1. MaggiePi*

              Very interesting about CA make up time. I’m not in CA and I’ve never heard of that!

              1. Witty Nickname*

                Me either! Though, when I was non-exempt, my manager did let me make up time by working OT the next day (so if I needed 2 hours at the end of the day to go to a doctor’s appointment, rather than using PTO, I could work 1.5 hours OT the next day to make up the time. Or if I needed to take a whole day off, but didn’t have any PTO, I could work 2 hours of OT for 3 days that week and make up the day off).

                But that was still at OT pay and just allowed me to make up the pay that I would lose for taking time off unpaid. This was also the manager that trusted me to work OT from home (my husband was a manager in a different department of the same company and had a laptop and our IT group actually gave me a user account on it so I could access my emails and the systems I needed to do my job) and just let her know what my hours were so she could adjust my timecard.

        2. Sophia Brooks*

          In my university culture, if you are ‘non-exempt’ you are considered support staff and not professional staff. It is being professional staff that gives you the benefit of a flexible schedule. Also, your benefits change if you are not classified as professional (as in I could lose vacation days). My hope is that they figure this out so that we are still considered professional, but it seems to me to feel like I am being demoted.

        3. Meg Murry*

          Because many companies have rules for hourly employees that say “if you aren’t clocked in by your official start time, you are late, and here is the punishment for X late punches”. Unless the company currently doesn’t have any hourly employees and therefore doesn’t adjust the rules, or companies create some kind of new level of “professional hourly” with rules applying to them, workers will now be held to strict time clock rules that aren’t relevant for their profession. In my LCOL area, there are a LOT of jobs that are entry level through 5-10 years of experience that are professional jobs requiring a college degree (validly, not just the creep of all jobs wanting a degree) but that pay under than $50,000 threshold. Or there are companies like mine that pay under the market rate for salary but offer a lot more vacation and sick time and other benefits like very cheap health insurance and 401k contribution regardless of matching status – so the employee comes out further ahead if they care more about the total compensation than just the $ amount on their paystub.

          Or, for instance, one of my employees is currently buying a house. Her realtor called her today and she spent 30 minutes on the phone with him talking over things. Because of that, she is planning to stay late around 30 minutes today finish up a task that takes a set amount of time. Under timeclock rules, she would have had to go clock out for that call to not wind up with 30 minutes of overtime for the day – or she would have had to notify me after the fact, and I’d have to go into the timeclock software to edit her time to take out half an hour at 10 am. Under our current policy, she’s salaried, so if she managed to work a little more quickly maybe she could have made that call adn still gotten out on time, or maybe she’d still be working 30 minutes later – but we didn’t have to track all that.

        4. Viktoria*

          This wouldn’t prevent people from setting their own schedule per say. It would, however, prevent people from working 36 hours in one week, when they took a half day for a doctor’s appointment, and 44 hours the next week, when they stayed an hour late Monday-Thursday to finish a deadline.

          Under the new guidelines, the same person would become non-exempt, and either have to take a pay cut one week and be paid overtime the next, or (more likely) use sick time / PTO for the doctor’s appointment, and be rushing to finish their work in 40 hours the next week (or still be paid OT, depending on how the company handles it).

          I was in a non-exempt position where I worked less than 40 hours some weeks and considerable OT other weeks. I had a savings buffer so I didn’t mind particularly, and enjoyed the short weeks, but most people prefer to be guaranteed their minimum salary each pay period and not be scrimping until busy season rolls around.

      2. Anon for This*

        Not only that, but my company has already instituted changes based on this. They actually tried to cut the pay and benefits in my department, because they claimed that we would now have to be classified as hourly employees. Once they realized that the pay would be entry level anywhere else and that they’d lose the staff of an entire department, they backed off on the pay cut, but they still reclassified us in a way that meant we lost our benefits (these are based on job classifications) and flexibility. My company is already known for paying below market in the area (the benefits used to be great, which made up for it).

    4. Eric*

      But there is no requirement that a company makes there non-exempt staff clock in or out, or take PTO for short appointments, or work a full 40 hours per week.
      You can continue to be a salaried non-exempt employee, and all that will change is that you get paid extra if you work over 40 hours in a week.

      1. Ask a Manager* Post author

        But they’ll need to start paying attention to when she comes and goes, and she’ll need to track her time on things she does outside work, so they can ensure they’re not running afoul of the law.

        1. Observer*

          This is true. Any company who has not been tracking people’s time is almost certainly have to. And, that’s going to be a pain. It could be an expensive pain. And, I think that a lot of employers who think that they are fine because “Supervisor knows who works their hours and who doesn’t” are going to find that they reall, really aren’t.

    5. JoAnna*

      I’m non-exempt salaried and I have a flexible schedule such as you describe. It’s really not a big deal — I just have to make sure that my hours in a given week add up to 40 (no more, no less). So if I leave early for a doctor’s appointment one day, I work an extra hour the next day (but it has to be done within the same workweek). Right now it’s pretty much on the honor system, although my boss does ask that we send him start of day/end of day e-mails whenever we work from home (which I do three times per week), and note when we took our breaks in the end of day e-mail.

      1. Jeanne*

        That’s what I used to do. I would go to the doctor and make up the time. But I could do it within the 80 hour pay period not the 40 hour work week. It’s hard to say but they might have to stick with the one week time period.

      3. Anon for this*

        Hopefully this is what will happen with my schedule. I’ve been spoiled because my boss doesn’t care if we make up the time we take for doctor’s appointments during the day (which is hugely helpful since I’m pregnant right now) because they usually don’t take long and he knows how much time we put in on work things outside the normal office hours (like checking/answering emails).

      4. Stranger than fiction*

        Lucky you, that wouldn’t work in California because you can’t go over 8 hours in a day.

  14. Formica Dinette*

    I wonder if Dabney Coleman’s character in “Nine to Five” was inspired by the Tiger Oil CEO.

  15. Bekx*

    Here’s my question about the exempt/overtime rule.

    How is this going to be policed? My last company illegally classified me as salary (I learned that after leaving), and I can guarantee they have no idea that there is going to be a new salary test. So I sure that my former coworkers are still going to be underpaid. Do they have to report them to the state in order to be paid correctly? It’s a small company of under 20 employees, and no HR or anyone who would be paying attention to this.

  16. pumpkin scone*

    I work for a public university. I thought state employees were sometimes treated differently when it came to exempt and overtime rules. Anybody know?

    1. fposte*

      Unless they’re treated differently now, they’re probably not going to be. I’m seeing UWM has put some preparatory guidelines up for their employees and assistantships. I’ll link in a followup.

    2. Anxa*

      Well, that’s certainly true for workers who aren’t classified as regular employees. I highly doubt a post-doc or grad student is going to be making 50K+ now or working less than 40 hours a week.

      1. TL -*

        Grad students make stipends, not wages though. So it won’t affect them at all.
        (And the way post docs are treated is criminal, anyways. I hope this affects them!)

        1. fposte*

          That’s not true–some grad students receive stipends, but many of them receive actual salary. All mine do.

          1. TL -*

            Oh really? All the ones I know were on stipends or fellowships (now that I think about it, that is minus the one semester they TA but most only do that one semester.)
            I’m in STEM, though. Maybe that’s why.

            1. fposte*

              I think it’s insanely variable. We have four different versions of assistantships on top of that.

            2. Ultraviolet*

              I think wages are pretty common for STEM RAs actually. My school does them and I don’t think we’re a rarity. (Though I think in some ways RAs who are being paid with wages are still being treated like stipend recipients….)

      2. Ultraviolet*

        I’m not making any claims right now about how this plays into the proposed overtime changes, but in some fields/locations that’s not a terribly rare postdoc salary. And I also doubt that grad students are making that much, but I think it’s fairly common for them to be receiving wages for 15-20 hrs/wk of work and school credit for the rest of their time. (And I am talking wages rather than stipends.)

    3. TCO*

      At least in my state, the only difference between public and private employees is that public agencies are allowed to give comp time (still at a 1.5 multiplier) rather than overtime pay. At my public university the employee gets to choose on a case-by-case basis which option she prefers. Other than that our university’s policies are in line with the federal policies.

      1. pumpkin scone*

        comp time rather than overtime pay is probably the exception I was remembering. Thanks!

  17. Fawnling*

    Question! My current company has many people on salary but does not pay over $40k tops. These people’s jobs depend on consistent availability with the added bonus of flexible hours. Will they have to become exempt?

    1. Ask a Manager* Post author

      They will have to become non-exempt, since they won’t meet the salary threshold. So they’ll have to start tracking their time and being paid overtime.

    2. CS Rep By Day, Writer By Night*

      Their employer could also raise the salaries to the $50K threshold. This is what they’re going to have to do for my department, I think; our jobs can’t possibly be done on 40 hours (my title is Client Services Rep but the job function is more that of an Account Manager), and they’d pay a lot more in overtime than raising our salaries – we regularly work 10-15 hours of overtime weekly.

      1. Judy*

        Or, as noted below, they could reduce your hourly rate so that your current salary is what you would take home with 15 hours of overtime. Basically calculate your hourly rate to be your salary divided by 62 hours.

      2. MaggiePi*

        Or they could establish your hourly rate to average out with overtime to what they pay you now, as long as it wouldn’t be below minimum wage.
        For example, if you currently work about 60 h/w and make $40,000/yr, they could set your new wage at $11/hr. Then ($11*40)+($16.5*20)= $770/wk = $40,040/yr
        I think that’s gonna be the tough one for employees to swallow, and I don’t blame them.

        1. Stranger than fiction*

          See I’d be scared for the day the overtime dried up and then you’re suddenly earning way less.

        2. soooo Anon*

          This is exactly what I have seen happening around here (midwest) by employers already planning for the changes. Mostly for those in the 30- 40 k range- grocery managers, restaurant managers, small business, etc. There is no magic pot of money to increase everyone’s pay…

  18. Angela*

    Am I the only one that thinks a lot of companies are just going to *lower* hourly rates for exempt people closer to the current threshold? For example, you have someone who currently makes $26k per year (500/wk). That breaks down to 12.50 per hour. However, this employee is working 10 hours of unpaid OT since they are exempt. So when the new reg goes into effect, the company announces their *new* hourly rate is will be 9.10/hr. They will still make roughly $26k per year (assuming 50 hour weeks) and company will save about $9700 that they would have had to pay if they had left the rate at 12.50.

    2. fposte*

      I’m not seeing how the company saves money there, though. I think you’re right that most companies will just figure out the hourly rate based on the budget line for the position, but it’s going to cost them the same.

      1. Ask a Manager* Post author

        They don’t save money, but they avoid spending more — because the person has a lower hourly rate, even with overtime the person’s total pay stays the same (and maybe goes down if they don’t work overtime every week).

        (I’m also reading really fast and maybe getting this wrong.)

        1. Catbert is my hero*

          yes, but who really wants to tell their staff that you are cutting their hourly rate so that they don’t make more money? There will likely be more pressure on staff to get the same amount of work done in less time. As a manager, I might not have cared if a job took you 10 hours if you were exempt, and you spent some time each socializing or on Facebook. If you now become non-exempt, you have 8 hours to get it done, and socialize or web browse on your own time.

          1. Ask a Manager* Post author

            It’s going to happen, mark my words. It’s not going to be “we’re cutting your hourly rate so you don’t make more money”; it’s going to be “we’re cutting your hourly rate to keep your salary at the one we’ve agreed to and so that we don’t have to eliminate jobs.”

            1. MaggiePi*

              Exactly. And in some ways this 100% makes sense. As AAM says, those are the terms under which someone took the job, so it’s not really changing anything. But it will be hard to feel like one isn’t missing out on a big raise somehow.

            2. Kat*

              This exact this happened to my mom at her old job. One of many reasons she no longer works there.

            3. Jadelyn*

              On the other hand, at least it will make it much more comparable for newly-hourly employees who might consider looking for a new, better-paying job once it is forced to become clear just how underpaid they’ve been.

      2. Angela*

        Yes, not an actual savings over what they are spending now, but not spending more. Saving them money in the sense that they don’t have to spend extra.

        1. fposte*

          Ah, I see–and you pretty much said that in your last line and I missed it. Yes, I agree.

    4. Mike C.*

      That wouldn’t make sense to me in the medium to long term. Hours works are going to correlate to productivity produced for the company. So either a company right now has wasted capacity and doesn’t mind paying for it (thus, they have capacity to cut when these changes go through) or they’re currently at capacity now, and cutting it will mean they sell less and make less revenue and profit.

      In the real world sure, you’re going to have owners who cut their nose to spite their face. But they’re either going to lose the ability to serve all their customers as they did before or they’ll go back to the capacity they had before.

      1. Ask a Manager* Post author

        Or their way of operating is calibrated to the current rules and a major change like this will leave them needing to outlay money that they may not have or having to cut back productive work because they can no longer afford it (see charities in particular). It might be necessary but let’s not pretend it won’t truly cause real problems for some organizations that built their operations around the rules they were given.

        1. Mike C.*

          Of course, I certainly won’t claim that there won’t be any examples of pain.

          At the same time, there comes a point where an organization that requires so people to work so many hours for so little pay shouldn’t be allowed to pass those externalities onto the rest of society. If someone wants to argue for a phase-in or more notice or whatever, that’s fine. But I believe the rules as they stand are on balance incredibly harmful to employees and this change will overall good for society at large.

          1. Ask a Manager* Post author

            Oh yeah, I don’t disagree with that at all. I just see a lot of people reacting as if this is exclusively great news without considering that it’s actually really going to be hard for organizations they might care about, like nonprofits doing important work in their communities who will be cutting programs and/or staff, or what it will mean for people who will lose flexibility that they have now (which will absolutely happen to some people).

            Doesn’t mean the change shouldn’t happen, but I think there’s real value in talking about the full picture of how this will play out. It’s not just “hey, fair pay and more money.”

    5. Diluted_TortoiseShell*

      The problem with this line of thinking is that it assumes the worse possible outcome and ignores the cultural and economic forces that are creating change in the U.S. right now around wages and work-life balance.

      I do not believe that the majority of employers are going to tell accountants, analysts, and other college educated skilled workers that their hourly rate is now going to effectively be $9 – $11 an hour when Walmart just announced that their minimum wage is $10 per hour. Or when companies are announcing $75,000 minimum pay. What would be stopping them from going to less stressful, unskilled employers?

      If this law had come up 4 years ago, before the minimum wage momentum and a candidate like Bernie Sanders whose focus is only income equality become such a part of mainstream America I would believe all the gloom and doom – but I think the majority of American’s who are salaried will benefit.

      1. Anon for This*

        Mine tried to do something similar. So I’m fairly certain others will…

        I have not benefited from the changes my employer made, except that it made me decide to focus on my job search more. (I had already been heading that way.)

        Ironically, my company has lost money on this deal. They’ve had to pay me overtime, and even though my benefits are no longer as good, I don’t have to pay as much into them.

      2. Tyrannosaurus Regina*

        I think ultimately it will be a positive thing, but the birth pangs might be pretty bad and pretty chaotic in the short and medium terms.

        1. Anon for This*

          My experience leads me to think that how they handle it will tell you a lot about the ethics and trustworthiness of your employer…

  19. Lauren*

    Hmm. The obesity one will be tough to interpret in “real life.” I say that because it’s difficult to tell the real reason why someone is obese. If you have hypothyroidism but eat fast food every day, you’re still going to be protected even though it’s not necessarily your thyroid that’s doing the damage?

    1. Jeanne*

      The court cases for discrimination are often hard to prove. I’m sure they will remain complicated. There is just now a possibility you could prove discrimination based on obesity.

    2. Argh!*

      Mental illness is often an underlying factor. Does a person have to admit to being depressive or taking an anti-psychotic to get a better chair?

      1. TL -*

        but just because you have a mental illness doesn’t mean you have a disability.

        And, no, you could just go to your doctor and fill out the paperwork with them + HR without disclosing the exact nature, if I’m remembering other AAM conversations correctly.

        1. Argh!*

          I mean… if the cause of the obesity is depression, the person has to have documentation of depression to get a chair? That’s kind of nuts.

          1. TL -*

            What the person really is asking to be accommodated is the depression, not the obesity. So, yes, they’d have to get documentation for their depression, because the symptom of depression (obesity) needs to be accommodated by their employers. If they need a later start date because they are tired because of depression, we’re not accommodating the tiredness, we’re accommodating the depression. It’s the same thing.
            And just because someone is depressed and are obese doesn’t mean they qualify under the ADA – they’d have to show that the depression met ADA requirements for accommodations.

            I don’t disagree that people should have chairs that are safe to sit in. But the ADA is not the way to go to get those chairs in this case. I think you could make a convincing case with OSHA perhaps.

    3. PeachTea*

      I think a lot of people are confusing medical conditions with disability. I have asthma. That is a medical condition, but it is not a disability. For obesity to be covered by ADA the disability has to cause the obesity. Someone could make an argument that the flu caused their obesity, but they wouldn’t be covered because the flu is not a disability, it’s a medical condition. Two separate things. (The flu is obviously just an example, I’m not saying it’s a real cause of obesity).

      1. Judy*

        I would say that your asthma does not rise to the level of disability. With an implied “yet” in that sentence, since it’s a spectrum and can get worse over time. Breathing is a major life activity.

      2. The Strand*

        I think that if your asthma prevented you from a major life activity, it could indeed be considered a disability.
        Googling real quick, and it does appear that people have successfully petitioned for disability benefits with serious asthma cases.

        1. PeachTea*

          I more than understand that asthma can be or can become a disability. That’s not my point. A lot of people in the comments are using medical condition and disability interchangeably and that’s just not true. I can have a medical condition without having a disability.

      3. Kathlynn*

        As someone with asthma (not saying you don’t, just setting my view point), I’d say that it is a disability. Maybe not in the same way that being blind is (constant disability), but if or when you have an asthma attack your breathing is effected. Or if you are put into a place/situation where your asthma is going to be triggered. If you cannot treat your asthma, you might not be able to do your job (because you can’t breath), or might have to go to the hospital, or worse.
        So, what would happen if your boss refused to allow you to use your inhaler, or refused to get you proper safety equipment (face masks). Without classing it as a disability, afaik, the employee is screwed. Classing it as a disability, and they can get accommodation and or take their meds.
        Real things that happened to me, my coworker thought I should use my inhaler w/tube in the bathroom because it might worry the customers. And, we use chemicals I’m allergic to every day at work, my former employer would only supply dusk masks. My doctor recently told me that those aren’t good enough, and I need one with a charcoal filter. (same work place, new owner btw). Get to figure out how to ask for that.

        1. PeachTea*

          This was not supposed to be a debate over whether or not something is or is not a disability. If your asthma qualifies then you most definitely deserve accommodation. Mine is not that severe. Maybe I should have used a simpler example. Does it make more sense if I say I have a cold? It’s a medical condition, but not a disability. I’m just trying to point out that they are not the same thing. Yes a medical condition can cause obesity. But is that medical condition a disability? The law is saying if not than the obesity is also not a disability. You can’t have one without the other.

      4. LiptonTeaForMe*

        I have asthma as well and one of the meds in my inhaler is a steroid and if you have never been on a steroid, they do cause you to gain weight. Maybe not so much in a couple of puffs a day, but it does add up.

    4. Countess Boochie Flagrante*

      And on the flip side, people who are obese tend to receive very substandard medical care. I had to do a lot of hunting to make sure I got a foot doctor (for a foot issue that was 100% unrelated to weight) who wasn’t going to just tell me to lose weight and it would fix itself.

  20. Lee*

    “If it becomes law, you’d have to be paid a minimum salary of $50,440 in order to be exempt from overtime pay requirements – a big increase from the current threshold of $23,600.”
    These were the numbers originally attached to the new overtime law, but the newer overtime law the DOL introduced may not contain the same numbers (especially considering the amount of public comments this generated).

    Isn’t it a mystery, as of this point, what the finalized annual salary for exempt or nonexempt employees will be?

    2. Pwyll*

      Yes and no. We know the rule transmitted from the Department of Labor to the White House’s Office of Management and Budget (OMB) has the rates at $970 per week, or $50,440 annually, in 2016. OMB theoretically could change the text of the rule before it is released. But so far it doesn’t appear that’s going to happen.

  21. JoAnna*

    I’m really interested in if/when the government will change the overtime regulations. Right now my husband, a computer programmer, is exempt but he gets paid less than $40,000/year (yes, I know… but it’s an entry level job – he just got his degree in late 2012 – and he works for a school district). It’d be wonderful if he was made an hourly employee (no more late nights at the office without more financial compensation!), or if his salary was raised.

    1. MaggiePi*

      I hope one of those things happens for him. Sadly, I think most places will just adjust hourly rates to compensate, but it’s all just guessing until it happens.

  22. Pwyll*

    Just to piggy-back on Hyman’s blog: I’m also hearing that we’re looking for an implementation date around Labor Day (seems fitting, I suppose). The regs are going through White House review now and that seems to be the right kind of timing we’d expect for a regulation like this.

    A boon to employment lawyers, but I’m not entirely sure for anyone else.

    1. neverjaunty*

      It’s a boon to people who will make more because they are now entitled to overtime. Keep in mind that the original salary threshold was set in 1975 – meaning that threshold is in 1975 dollars, and is now a salary below the poverty line.

        1. neverjaunty*

          Weird, the article I was reviewing said 1975; maybe it meant the original implementation.

      2. Pwyll*

        I am 100% on board with increasing the number, but jumping from ~$20,000 to ~$50,000 immediately is a HUGE imposition on non-profits and small employers, and many employers will take away the flexibility their formerly exempt employees enjoyed to ensure they don’t have to pay overtime.

        I would have been a larger fan of a multi-year phase in over 10 years to get us to the right number linked to inflation.

    2. Jon Hyman*

      Like most new employment laws or regulations, it’s great for us employment lawyers, but bad for business. It’s an odd juxtaposition – great for me … lousy for my clients.

  23. Rebecca*

    Wow, those Tiger memos are awful.

    I like the one about typewritten vs handwritten memos. “If you don’t know how to type, you’d better learn”. I would bet anything that this dude sat in his chair, blathering out memos to his secretary on a tape machine, that he or she dutifully typed up, and delivered to him in a folder so he could sign them. I’m surprised they’re not sealed in red wax with a ring stamp. Jerk.

    1. Ignis Invictus*

      Once upon a time I worked with a guy who would print Outlook calender meetings, scan the print out as a .pdf, and attach it to an email. He thought this was a for really real meeting invite. He did the same thing with forwarding emails. Considering these were written in 79′ I can TOTALLY understand his frustration with handwritten, often illegible, memos.

  24. Argh!*

    There are many genes “linked to” obesity. Could someone who has had their DNA analyzed qualify for ADA?

    Or should fat people just use inadequate chairs until they break them, fall on their arse, then file for ADA for their broken back?

    1. fposte*

      On the first, I highly doubt it unless it was something like Prader-Willi syndrome, where there was an inescapable direct correlation rather than a possible tendency.

      On the second, I think things will be pretty much as they are now–some people will get adequate chairs and some people won’t.

      1. The Strand*

        There are some genetic markers, including FMR1, that have been traced to polycystic ovarian syndrome (PCOS), which often (but not always) results in obesity and difficulty losing weight. Some people have PCOS and insulin resistance, but are not overweight. PCOS is one of the few diseases where it’s widely assumed that the disease caused the weight gain, rather than the other way around.

        1. fposte*

          That’s the thing about the phraseology in the decision–it’s really muddy, and all we can do from here is guess about a court would rule on any specific case. Which is kind of true across the board on these things, really; none of them are as certain as we like to think.

        2. TL -*

          There’s a huge, huge difference between “genetic markers linked with” and “known mutation/gene causing,” though. The first implicates a tendency towards, or a strong correlation with, depending on the evidence (and maybe not even that!), and the second is, with rare exception, an inevitable outcome.

          I don’t think you could (or reasonably, should) claim the former for accommodations, if only because we know so little that there’s just no definite statement to make.

  25. Joshua*

    I think the new exempt classification salary thresholds are complex. They aren’t only positive. But, they aren’t only negative either.

    Certainly there are small organizations or nonprofits this could negatively effect. They will need to rethink their staffing resources, reorg/cut positions, or move people to a lower hourly wage in order to continue making ends meet.

    I make below the proposed threshold and I am currently exempt. I would hate to suddenly need to monitor my time/be in right at 8AM, use PTO for doctor’s visits, etc. Hopefully employers especially, nonprofits or orgs with a slightly less competitive salary, will hopefully recognize that this flexibility is what helps offset a lower salary and is a huge benefit used by candidates to compare offers/choose companies. There must be some creative solutions to ensure that some of these perks are still possible.

    I think there will be growing pains and a year of two of adjustments to figure out what this means. And, it may be a detriment to some workers. Some employers may cut pay or take away flexibility. BUT, I think that the hope is that these regulations prevent someone from making what is in some cities below a living wage and yet being expected to work 50-60+ hours a week with an inability to hold down a second job because of the exempt status. And, I think there are definitely industries and organizations that take advantage of this.

    I’m a bit of an idealist and an optimist. But, I really hope that after kinks are worked out most people will experience no change or a benefit. And even if it’s a slight inconvenience to me, if I know that it is preventing someone in my community from being taken advantage of then I’m OK with that.

    1. Alice*

      THIS: “BUT, I think that the hope is that these regulations prevent someone from making what is in some cities below a living wage and yet being expected to work 50-60+ hours a week with an inability to hold down a second job because of the exempt status.”

      I’ve had coworkers leave my current nonprofit because they were not being paid a wage they could live on but were working so many hours they couldn’t get another job. While this law isn’t 100% positive, the current minimum of $23,000 absolutely needs to be raised.

  26. CS Rep By Day, Writer By Night*

    In my department, we fill out time sheets even though we’re salaried, so management has visibility to the accounts and tasks we’re working on. These time sheets were very recently audited – I wonder if there’s a connection to see how many hours the CS Reps are actually putting in?

  27. Joshua*

    Regarding the EEOC lawsuits – how does this relate to the recent string of states nullifying LGBTQ workplace protections? Even in states that are trying to specifically allow LGBTQ discrimination in the workplace- could someone file an EEOC complaint?

    1. Ask a Manager* Post author

      States can’t override protections that are given at the federal level, so I would think so, yes. (But this is not my area of expertise.)

      1. Joshua*

        Thanks – that was my (very, very limited) understanding too.

        My understanding is that these few states (i.e. North Carolina) are trying to say that since sexual orientation isn’t a delineated class it isn’t protected. And, it passed a law preventing municipalities from adding it to their protected classes.

        But, if the EEOC has already said that it falls under sex protections, then they are wasting a lot of taxpayer resources trying to fight/defend laws that are pretty meaningless.

        1. Kasia*

          I could be wrong but I believe a few groups have already sued the NC government because this law is unconstitutional. So yes not only are they being bigots, they’re really just wasting time and money on this.

        2. Pwyll*

          Sort of. :) The North Carolina law limits protected classes under NC’s public accommodations law. In NC, you can report discrimination to a state agency that enforces the state laws, or to the EEOC which enforces federal Title VII. NC can’t change the Federal law or the jurisdiction of the EEOC, but they CAN make it that the state agency doesn’t have jurisdiction over sexual orientation cases. It basically forces employees to go the federal route, which (sometimes) can be more complicated and time consuming than in state agency proceedings.

          This is such a complex area of the law because most states have concurrent statutes on these topics.

          1. Turanga Leela*

            The issue about having to use federal enforcement mechanisms is really interesting. I haven’t seen that discussed much.

    2. Turanga Leela*

      For what it’s worth, I have a friend who is a plaintiff’s attorney on LGBT issues, and he is looking for people in North Carolina who want to file EEOC complaints over workplace discrimination, including treatment like being told to use the wrong bathroom. So at least some attorneys in the field think that the North Carolina law won’t hold up in the context of the workplace. Students are protected to some extent by Title IX (although I don’t know the details of that protection, just that schools aren’t allowed to discriminate against transgender students).

      I had a lot more typed out here on antidiscrimination law in general, but (a) it’s probably overkill, and (b) I haven’t read the recent laws myself and only know what I’ve seen in the paper, so I’m worried I am mischaracterizing what the laws would/will actually do.

    1. MaggiePi*

      Also, it looks like they are (or were) planning to link it to something to avoid needing to jump it like this again in 20 years. But I’m not clear on exactly how this will be calculated.

      The article says:
      “…the proposed regulations call for the Secretary of Labor to publish a revised threshold each year based on the 40th percentile of earnings for full-time salaried workers…”

      The DOL rule itself follow that with:
      “Furthermore, in order to prevent the levels from becoming outdated, the Department is proposing to include in the regulations a mechanism to automatically update the salary and compensation thresholds on an annual basis using either a fixed percentile of wages or the CPI-U.” [Consumer Price Index for All Urban Consumers]

      But I’m not sure if this is included in the current version or of course if it will actually be in the final rules.

  29. Kristine*

    From the Tiger Oil memos:

    “There will be no more taking one or two days at a time and combining them with holidays and weekends…I am not a fool- I know you can take two weeks and stretch them into two months properly done so don’t insult my intelligence.”

    I’m probably going to spend the next hour figuring out if it’s actually possible to take 10 days PTO and turn it into two months out of the office.

    1. Jennifer*

      My husband’s old company forbid using your 10 PTO days combined with a holiday weekend. It was always so frustrating!

    2. AMT*

      In the U.K., the royal wedding apparently coincided with existing holidays to create two four-day weekends in a row. This meant that some U.K. employees could take an 11-day vacation by using just 3 days of PTO. My wife, an American employee of a U.K. firm, was extremely jealous.

    3. AvonLady Barksdale*

      Christmas and New Year’s? Thanksgiving? Wait, I’m doing this math… So let’s say Thanksgiving is the 25th and 26th, and you take off the 29th-3rd, then the 6th-10th…

      Yeah, even that doesn’t work. That’s still at least a week in the office in December.

      1. MaggiePi*

        Unless you work somewhere like my friend did, where they just completely close from about Dec 15th to Jan 5th. Boy, doesn’t that sound nice!

  30. Former Computer Professional*

    That obesity one is going to be a mess. How do you “prove” that obesity is caused by a medical condition? That’s going to require more invasive medical history than the ADA was designed to require people to reveal.

    Part of this worries me because of the public perception that obesity solely occurs due to “poor lifestyle choices” and that it is a moral failing. Obesity researchers know well that this isn’t the case, and that the main use of the word “poor” with obesity comes from the fact that being poor means you are more likely to be obese and in poor health. Research has shown that simply over-eating doesn’t cause anymore than a modest weight gain; other factors have to become involved to get to higher levels of obesity.

    It’s bad enough that fat people are less likely to be hired for any job, not just ones that require physical activity, and are more likely to be or become poor (causing a vicious cycle). There’s a pervasive myth that hiring fat people will drastically increase costs to a business, but research shows that isn’t true until you get to extreme levels. Even in places where body size is a protected class it’s still hard to prove discrimination in the workplace. And finally, I’ll point out that shaming people never helps obesity. Denying fat people jobs just for being fat isn’t “helping” anyone.

      1. Megs*

        Hate’s a great way to convince me that it’s all pointless and I might as well not bother, though! Even though the only really proven way to lose weight is to change your habits gradually to something you’ll be able to sustain for the rest of your life. F-you if you can’t fix it overnight!

        1. Jadelyn*

          Even that isn’t proven to lose weight – there’s increasing evidence for a biological set-point that your body will work its way back to after weight loss, even if you maintain new habits that produced weight loss initially. So you can gradually shift your habits, gradually lose the weight, then gradually gain it back even though you’re maintaining those habits.

          There’s a blog I read a long time ago, a woman talking about how the effort to maintain her 100+ lb weight loss turned into the equivalent of a 20-hr/week job, between exercise, meal planning, etc. and she admitted that even then, her weight had begun to creep back up and she was 15 lbs heavier than she’d initially been when she lost the weight despite the incredible lengths she was going to to try to “maintain” her weight loss. It was one of the final shoves that got me off the diet merry-go-round for good.

          1. Argh!*

            Some of the successful maintainers from The Biggest Loser have become personal trainers or aerobics instructors.

            1. Former Computer Professional*

              Yet the majority of people who go on The Biggest Loser gain the weight back, and often have horrible health complications from such a drastic and rapid weight loss.

              I don’t recall if this site allows links to other sites, but if it does, here’s a noted obesity researcher talking about how damaging The Biggest Loser is: http://www.weightymatters.ca/2011/02/biggest-loser-destroys-participants.html and an article about notable obesity experts talking about how horrible the show is to participants; http://news.nationalpost.com/health/our-panel-of-obesity-experts-on-the-biggest-losers-extreme-regimen-incredibly-unhealthy-and-ridiculous

          2. Megs*

            Yeah, I’ve heard that too. That said, I was specifically trying not to talk about diets. Diets (almost always) don’t work, we know that. Eating healthier and getting more exercise is (almost always) going to have health benefits that may or may not include weight loss, and the best way to do that is to make gradual changes that you can sustain. So I assume that by saying you’re off the diet merry-go-round, you’re not saying you’ve settled on a life of McDonalds for every meal. Although I suppose that would be your prerogative!

            1. mander*

              “Eating healthier and getting more exercise is (almost always) going to have health benefits that may or may not include weight loss, and the best way to do that is to make gradual changes that you can sustain.”

              That’s pretty much “Health at Every Size” in a nutshell. The key thing is that doing healthy things and improving your health does not necessarily lead to weight loss.

  31. Nonprofit HR*

    I am all for them raising the salary threshold for exempt/non-exempt, but if it is indeed raised to $50k that will be a significant impact for us. $50k for a non-profit in a state with relatively low cost of living will cause us to reclassify a good chunk of employees.

    It’s not so much the overtime that we will need to pay, but, as others have mentioned, the loss of flexibility is concerning. Perhaps this is me being selfish, but I will miss my flexibility a great deal if I have to go back to tracking my time closely. I think many others at my organization will echo those concerns.

    I am hoping the rule lands closer to $40k and then adjust from there. I’m just happy that our director has been working diligently to prepare us for the change and we will be ready when the time comes!

    1. Jadelyn*

      You can still have flexibility even if you have to track your time closely. I’ve never been exempt, but I have a great deal of flexibility afforded by my current employer. I have to clock in/out, but I can do so pretty much whenever as long as I’m here most of our open hours and total around 40 in a week.

    2. Student*

      I’m exempt. I have to track my time on a half-hour basis for billing clients. I can still get up and leave at 2:30, or come in at 10:47, if I choose, using flex time.

      1. Greggles*

        We changed from exempt to non exempt last year. The overtime is great. But what I don’t get to do is work 50/30 because of my workload. In my company you gave to work 40hrs or take PTO. So have been working more per 2weeks and I don’t always like it!

  32. Teapot Project Coordinator*

    I’m one of the semi-lucky ones for this. I’m salary exempt but my hours are part-time(35 hrs-ish per week, never OT) so even though I would fall below the new exempt salary minimum, we’ll likely just convert my annual salary to an hourly wage and leave it at that.
    However at Old Job, this would have been a saving grace, and it’s for the co-worker I left behind there and the one who replaced me that I think of when I think of the people this new exempt salary minimum will help.

  33. Nervous Accountant*

    I wonder how the overtime laws would affect my job and industry. I’m an accountant and during our busy season we’re required to work 55 hours minimum (I realize this is not as bad as other companies). It usually hovers 55-60 during the busy season. Otherwise, it’s 45 hours per week (9 hours a day with 1 hour mandatory break). I’ve always heard (never did the research myself) that accountants are exempt from getting paid OT etc.

    1. MaggiePi*

      IANAL but I think accountants do qualify on the “duties text” so they have the possibility to be exempt. However, they would still need to *also* qualify under the salary test, which they likely do now but may not when this changes.

    2. Pwyll*

      Accountants are usually under the “learned professional” exemption. But they have to meet the (currently) $455 per week threshold to be exempt.

      1. De Minimis*

        There have been lawsuits at the big 4 about this, arguing that junior staff are often just doing clerical tasks and data entry so they aren’t really doing professional work. I can’t remember where it’s at in the courts now, but I think the firms ended up winning.

  37. LisaD*

    I’m tardy to the rant party but I have one for Alison to enjoy. I’ve changed key details to protect the guilty:

    “Good morning Glinda and Glinda’s Manager, Scarecrow:

    I am respectfully requesting that Glinda pull down her reference on Slack to where I live. As the team responsible for Chocolate Teapot purchaser privacy, you would know that where I reside is personally identifiable information and not something that is appropriate to share with the entire company.

    I take matters of personal privacy very seriously — my home address, personal social networks, direct and private communications with individuals, and other online and offline records of my personal, private information.

    Please remove any reference to me on Slack that involves personally identifiable information.

    Thank you for your help with this request.

    Dorothy

    PLEASE REMOVE:
    Glinda 9:58 PM
    ‘Oz Got Talent will be filming at See’s Candies in The Land of Oz on Emerald Road tomorrow! @Dorothy or @TinMan (or anyone else who lives in The Land of Oz) you should go to the taping, it’ll be fun to see The Wicked Witch sing!'”

    It’s important to note that Dorothy has “Land of Oz” as her public location on her Facebook profile, that we have a company-visible spreadsheet Dorothy is aware of with Dorothy’s full address on it, and that very week she’d been telling everyone at work about her purchase of a condo in the Land of Oz… she has also posted a public video on social media of “my backyard in Oz.”

    Glinda has, however, taken the hint and stopped including Dorothy in social invitations.

  38. Curious*

    RE: exempt changes, some of our staff meet the minimum salary to be exempt and others do not by virtue of having been with us a long time. Given that definitions for exempt are responsibility-related, it doesn’t seem appropriate that people with similar responsibilities would be classified differently only because one has been with us longer than the other.

    We are thinking we need to define our own responsibility parameters (like, you need to be a manager) to be classified exempt in our organization, and that those who make more than the 50,400 but are not managers will also be classified nonexempt. Note that overtime is rare for us, so the exempt status has more upsides than down.

    Anyone else thinking along those lines?

  39. LiptonTeaForMe*

    I have 2 nieces from the same parents. They grew up eating the same food, they were both in dance, one was active in gymnastics and the other was into soccer. By the time they got to middle school, the one in gymnastics was a bottomless pit, she was always eating and yet never seemed to weigh much more than a wet dishrag. (Yes, I exaggerate.) In college, she was barely 5 foot, a runner, biker…you name it she was into it. The other child was stockier, didn’t have the same type of body as her sister. Somewhere along the line she got into Tae Kwon Do and continued as an adult until she reached black belt status and now teaches. But if she ever dared to eat as her sister does, she would put weight on like no one’s business. The reason for this little story is that being fat is not ALL about what you put in your mouth, it is related to genetics as well as environmental issues. And yes some of us make terrible decisions about what we eat, but skinny people make the same terrible decisions and due to genetics do not suffer the same consequences.

  40. Drew*

    A lot of people are asking the FLSA issue specifically from the perspective of nonprofits. But I thought nonprofits generally weren’t covered by the FLSA. Is that wrong?

    Looking around online, it looks like a nonprofit should only be covered as an enterprise if it engages in a lot of commercial activities. However, it looks like individuals at a nonprofit might be covered if they engage in interstate commerce, which may include “making/receiving interstate telephone calls” which these days would be most employees, I would think. (http://www.dol.gov/whd/regs/compliance/whdfs14a.pdf)

    But then I’m also finding one source that says most nonprofits shouldn’t be covered at all or can limit their coverage to just a few employees. (http://www.epi.org/blog/why-nonprofits-shouldnt-fret-over-the-new-proposed-overtime-rules/)

    So I’m confused.

    1. Ask a Manager* Post author

      That second link is really overstating his point. While it’s true that many nonprofits wouldn’t be covered as enterprises, the vast majority of nonprofit employees are covered individually because their work involves “the regular use of interstate emails, telephone, and mail.” It would be really unusual to find a nonprofit that truly wasn’t covered under FLSA — it would have to be very small and very narrow in scope!

  41. Snow*

    It’s interesting for me to see people talking about how much flexibility they’ll lose going from exempt to non-exempt, since as an exempt worker I’ve never had that flexibility. If I work under 40 hours, I need to use PTO. (I couldn’t do 50 hours one week, 30 the next, they believe there’s always enough work to fill 40 hours per week…they’re probably right.) I need to record all my actual hours (to the quarter hour) so that billing to the customer happens right. I guess the important note is that they’re not required to be flexible just because someone is exempt, just like they’re not prohibited from it if they’re non-exempt, it’s just easier to do so with exempt folks.

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