Everything employers need to know about employee job classifications

FLSA wage and hour rules can be considered the most complex and can cause the most issues for companies. These regulations can confuse even the most experienced HR managers. Continue reading to learn more.


Chief among the issues that keep employers up at night is staying compliant with federal and state employment laws.

Arguably, wage and hour rules are the most complex and cause the most issues for companies. Job classifications under the FLSA can confuse even the most experienced HR managers.

In fact, some of the costliest wage and hour lawsuits and penalties on record could have been avoided if only the employer properly classified an employee as either exempt or nonexempt. It’s critically important to understand the law — and the devil is in the details.

Exempt or nonexempt?

Most employers understand that an exempt employee is not entitled to receive overtime pay for hours worked in excess of forty hours per week, according to the provisions of the FLSA. Conversely, nonexempt employees are required to receive overtime pay and should be classified as nonexempt from these same overtime provisions.

While it may sound straightforward, figuring out an employee’s exempt status is not that simple. Different types of exemptions exist and each has its own unique set of requirements that are outlined in the FLSA. Most of these exemptions are specific to certain jobs or industries, for example, some exemptions only apply to specific types of agricultural workers, or to truck drivers who transport goods in interstate commerce. But for most businesses, exempt employees will usually fall into one of the following three exemption categories: executive, administrative and professional. Collectively, these are referred to as the white collar exemptions.

A common error that employers make is to classify all their salaried employees, or all employees with the word manager in their title, as exempt. Neither of these factors alone is enough to make the exempt designation. Each of the white-collar exemptions has two components: a salary requirement and a duties requirement. The salary requirement is the same for each of the three exemptions, but the duties requirements are different.

The salary basis test

For any employee to be considered exempt under any of the white-collar exemptions, they must be paid on a salary basis. This means that any employee who is paid by the hour, per day, or is commission-only, regardless of their title or position, will not meet the criteria for any of the white-collar exemptions. How the salary is paid as well as the amount are also subject to certain restrictions. The salary basis test determines the minimum amount, which is subject to change from time to time. The minimum salary is currently $455.00 per week (or $23,660 per year). This test also provides restrictions on when and how an employer can make deductions from an exempt employee’s salary.

An increase to the minimum salary per week from $455 to $913 (or $47,476 per year) was originally scheduled to go into effect back in December 2016, but industry groups against the measure successfully lobbied to block it. The U.S. Department of Labor is exploring alternatives that could appease these industry groups while keeping the regulations in line with the times. The DOL is scheduled to re-start the rulemaking process in March 2019, and prior statements of the current DOL Secretary, Alexander Acosta, suggest that the new rule may propose a more modest salary increase to around $634 per week (or around $33,000 per year).

Job duties

In addition to the salary, each white-collar exemption has its own unique set of duties requirements. Employers must look at the actual duties that each employee performs to determine whether they meet the criteria and their title or position does little to influence the outcome. So, simply naming an employee a manager does not automatically qualify the worker as an exempt employee. To be considered exempt under the executive exemption, which is the most common exemption for managers, this employee would need to supervise two or more full-time employees (or the equivalent) and have the authority to hire and fire employees. Otherwise, they would need to meet the requirements for one of the other exemptions to be paid in this manner.

Knowing that these regulations exist and being well-informed of the framework is the first step in understanding overtime obligations – and reducing wage and hour worries. Employers should seek a qualified employment law attorney for additional guidance on the specifics of each requirement to ensure compliance with applicable overtime laws.

SOURCE: Starkman, J.; Nadal, A. (15 February 2019) "Everything employers need to know about employee job classifications" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/what-employers-need-to-know-about-job-classifications?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001


Safety Focused Video - March 2019

This month’s Safety Focused video goes over eye safety in the workplace and tips for safe spring-cleaning.

Every day, more than 2,000 people injure their eyes at work. More than 90 percent of these injuries could be avoided.

Monthly safety tips from


DOL’s Annually Adjusted Federal Penalties

Recently, the DOL issued their Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019. These annual adjustments of federal civil monetary penalties are effective for penalties assessed after January 23, 2019, for violations occurring after November 2, 2015. Read this blog post from UBA to learn more.


On January 23, 2019, the Department of Labor (DOL) issued its Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019 which is the DOL's annual adjustment of federal civil monetary penalties.

Here are some of the adjustments:

  • Form 5500: For failure to file, the maximum penalty increases from $2,140 to $2,194 daily for every day that the Form 5500 is late.
  • Summary of Benefits and Coverage: For failure to provide, the maximum penalty increases from $1,128 to $1,156 per failure.
  • Medicaid/CHIP notice: For failure to provide, the maximum penalty increases from $114 to $117 per day per employee.
  • For failure to provide documents to the DOL upon its request, the maximum penalty increases to $156 per day, not to exceed $1,566 per request.

The adjustments are effective for penalties assessed after January 23, 2019, for violations occurring after November 2, 2015.

SOURCE: Hsu, K. (28 February 2019) "DOL's Annually Adjusted Federal Penalties" (Web Blog Post). Retrieved from http://blog.ubabenefits.com/dols-annually-adjusted-federal-penalties


Insurance Commission Urges Wisconsinites to Evaluate Flood Insurance Needs Before the Snow Melts

Insurance Commission Urges Wisconsinites to Evaluate Flood Insurance Needs Before the Snow Melts

Madison, Wis. — The Wisconsin Office of the Commissioner of Insurance (OCI) is urging residents to evaluate their flood insurance coverage now as the National Weather Service predicts temperatures across Wisconsin will rise later this week. With rising temperatures comes the possibility of snowmelt-related flooding. The Federal Emergency Management Agency (FEMA)1 noted late last month that Wisconsin’s flood risk is above normal to well-above normal throughout March and April.

“I think it’s fair to say that most Wisconsinites are ready for winter to be over,” said Insurance Commissioner Mark Afable. “But while we’re waiting for temperatures to rise, home and business owners should review their insurance policies to make sure they have appropriate coverage.

“If you purchase flood insurance, the policy does not go into effect for 30 days,”2 explains Afable. “Consider flood insurance now as an important protection against this type of peril.”

The U.S. Army Corps of Engineers is closely monitoring the Fox River between Wrightstown and DePere, the Wolf River, and the Menominee River for ice jams and flooding3 , while the National Weather Service in La Crosse is warning residents along the Mississippi River and its tributaries of an above-normal flood risk through May due to runoff from snowpack and deeply frozen ground.4 River ice jams occur when ice breaks up quickly in thawing temperatures and large, flowing ice chunks collect and create a dam, triggering area floods.

Not only will mountains of snow across the state melt into inches of water, saturated soil in many areas from late summer/early fall flooding leaves nowhere for that water to go.5

Public works departments are asking residents to help by clearing snow and ice from storm drains and grates. Homeowners should remove snow from the roof using a roof rake or push broom, make sure vents around the home are not covered by snow, and check that their sump pump is working properly. Clearing snow piles away from the home or building can also help prevent water seepage through the foundation.

Most homeowner’s policies do not cover flooding or seepage through the foundation. A separate flood insurance policy sold through the National Flood Insurance Program (NFIP) and managed by FEMA is necessary for this coverage. Visit https://www.floodsmart.gov/ to learn more about flood insurance.

Damage from sewer backup or sump pump overflow is not covered by standard homeowner’s insurance or flood insurance. The purchase of a special homeowner’s policy endorsement is required for this type of coverage. Contact your insurance agent to find out more about special endorsements and riders for expanded coverage.

  • Floods are the nation’s most common natural disaster.6
  • Just one inch of water can cause $25,000 of damage to your home.
  • More than 20 percent of flood insurance claims come from outside high-risk areas.7
  • Generally, water coming from the top down, such as burst fire sprinklers and ice dam seepage behind drywall, is covered by standard homeowner’s policies. Water coming from the bottom up, such as foundation seepage from snowmelts, is not.8

Created by the Legislature in 1870, Wisconsin’s Office of the Commissioner of Insurance (OCI) was vested with broad powers to ensure that the insurance industry responsibly and adequately met the insurance needs of Wisconsin citizens. Today, OCI’s mission is to lead the way in informing and protecting the public and responding to its insurance needs.

For more information contact Olivia Hwang, Director of Public Affairs, (608) 267-9460 or olivia.hwang@wisconsin.gov

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SOURCE: Wisconsin Office of the Commissioner of Insurance (5 March 2019) “Insurance Commission Urges Wisconsinites to Evaluate Flood Insurance Needs Before the Snow Melts” (Press Release). Retrieved from https://oci.wi.gov/Pages/PressReleases/20190305PRSnowmelt.aspx


Operating a drone? Check your coverage

Is operating a drone a part of your job description? If so, check your insurance coverage to determine whether an endorsement to an existing policy or a specialty policy is required to cover your drone-related activities. Read this blog post to learn more.


A happy couple was enjoying their wedding with their family and friends when disaster struck. The couple hired a wedding photographer to record the wedding and reception. In the course of performing his services at the wedding, the photographer used a drone to take pictures and record video. The drone accidentally hit one of the wedding guests, causing the guest to lose her eye.

A claim was made against the wedding photographer’s commercial general liability (CGL) insurance policy. However, the insurance company denied the claim asserting that the claim was excluded under the aircraft exclusion provision in the policy.

Eventually, the injured wedding guest filed suit against the photographer asserting negligence, and the photographer sought a defense under his CGL policy. The insurance company initially provided a defense under a reservation of rights, but then filed a declaratory judgment action asking the court to declare that the insurance company was not liable under the policy and that it had no obligation to provide a defense to its insured for the injury caused by the drone.

The court in Philadelphia Indem. Ins. Co. v. Hollycal Prod., Inc., noted that the CGL policy specifically excluded any bodily injury arising out of the use of an “aircraft” operated by an insured. While the policy did not define the term “aircraft,” the court held that the word was unambiguous and its ordinary meaning, as defined by Merriam–Webster’s Collegiate Dictionary, is “a vehicle (such as an airplane or balloon) for traveling through the air.”

The court held that the definition of aircraft included a drone. Accordingly, the court granted summary judgment in favor of the insurance company finding that the policy did not cover the claim and that there was no duty to defend the claim. The court even awarded the insurance company the costs of defense it incurred while providing a defense under its reservation of rights.

Drone use is steadily increasing commercially with virtually limitless applications and possibilities for causing personal injury or property damage. However, many CGL policies may exclude coverage under the aircraft exclusion.

Accordingly, if you are using a drone or contract the use of drone services, make sure you contact your insurance carrier about coverage and determine whether an endorsement to an existing policy or a specialty policy is required to cover your drone-related activities.

SOURCE: Stover, M. (19 February 2019) "Operating a drone? Check your coverage" (Web Blog Post). Retrieved from https://www.propertycasualty360.com/2019/02/19/operating-a-drone-check-your-coverage/


4 ways to help employees make better choices about what they eat

How often are there doughnuts, chips, soda, etc. in the break room? According to the RAND Corporation, 60 percent of Americans suffer from at least one chronic condition. Continue reading to learn more.


Doughnuts in the conference room. Soda and chips from the vending machine. Cookies in the office kitchen. A recent CDC study of employees across the U.S. found that the foods people get at work tend to contain high amounts of salt, sugar and empty calories.

When people are busy and on-the-go — a common reality for full-time employees who spend more than a third of their day at work — it’s all too easy to fall into poor eating habits. And poor eating habits contribute to poor health. According to a RAND Corporation Study, 60% of American adults suffer from at least one chronic condition (like diabetes or high blood pressure) and 42% have more than one. These conditions are costly, and not just for individuals themselves. The CDC estimates that productivity losses related to health issues cost U.S. employers $1,685 per employee per year, or $225.8 billion annually.

For employers that care about wellness, improving food and beverage offerings represents an untapped opportunity: Better nutrition at work can not only have a powerful impact on employee health but also contribute to a happier, more focused and productive workforce. Making large-scale changes across an organization is not always easy, however, especially when it comes to ingrained habits and preferences. What can today’s employers do to incentivize their employees to make healthier choices?

1. Make healthy food and beverages a benefit.

According to Deloitte’s 2018 survey on Global Human Capital Trends, 63% of employees surveyed cited healthy snacks as something they value highly when it comes to wellness. People want to eat healthier, which is great, but when they are busy, they’ll pick up what’s easy and available. And in too many of today’s offices, that means vending machines and office kitchens stocked with ultra-processed foods high in sugar and salt. Not only are these items unhealthy, they can also lead to sluggishness and lethargy as blood sugar levels spike and then crash.

It’s pretty simple: When more nutritious offerings are readily available — and especially if they are free or subsidized — people are more likely to try them. Companies that offer high-quality food and beverages as a benefit will reap rewards not just in terms of a healthier and more productive workforce, but also in attracting and retaining people, like millennials, who value wellness and appreciate the fact that their employer is investing in their health and happiness.

2. Get personal.

Different people have different drivers and different needs. This is why a one-size-fits-all approach to changing habits rarely works. Before making big decisions about your company’s food and beverage services, ask questions: Are some people on special diets or do they keep unusual schedules? What do people like and dislike about current available options? What kinds of foods and drinks do they wish were offered, but aren’t?

With a better understanding of habits, preferences and what drives people to the kitchen or break room in the first place (boredom? low energy? social time?), employers can begin to build a food and beverage profile that’s tailored to their workforce’s individual needs and thus more likely to be embraced.

3. Consider the “psychology” of snacking.

People don’t always make rational decisions — even more so when they are tired, stressed or “hangry.” But when corporations make the healthy choice the easy (and delicious!) choice, it helps. Everything from where snacks and drinks are positioned — are the more nutritious options at eye level? — to the design of kitchen and break room spaces can make a difference in promoting better eating habits.

For example, kitchen spaces that are attractive, comfortable and inviting encourage people to take a little more time and put more thought into selecting their snacks, and can also serve as a welcome place for people to connect with each other and de-stress. Taste is another important consideration. People sometimes assume that healthy food won’t taste as good as the bad stuff, but this is often just a misconception. Special tastings or fun office activities like offering a “snack of the week” can get people to try more nutritious options and see for themselves that they can be just as — if not more — delicious than what they were eating before.

4. Nudge, don’t push.

Don’t expect people to move from potato chips to veggie and quinoa salad overnight. Organizations that start with a few key changes — replacing sugary sodas with flavored water, for example, or swapping out highly-processed snacks and foods with similar, but more nutritious options — will face less initial resistance, and can then build up their healthy offerings over time. Every workplace has their guilty pleasures, whether it’s a specific brand of soda or a favorite candy. Rather than turning people off by taking their “comfort snacks” away, sometimes the best approach is to simply add healthier alternatives and then wait for people discover on their own that these can be equally fulfilling and delicious, and most importantly, make them feel better too.

Workplace wellness initiatives continue to grow in popularity, but there are still questions about whether these programs are as effective as they could be. While health screenings, smoking cessation programs and gym memberships are a good start, corporations shouldn’t overlook a key driver of good health — what their people eat and drink. Providing easy access to a great diet at work is a smart strategy for improving wellness, and one that employees will come to appreciate as a valuable benefit. Plus, healthy, enthusiastic and energized people makes for a much happier and more productive workplace — a win-win for employees and employers alike.

SOURCE: Heinrich, M. (3 January 2019) "4 ways to help employees make better choices about what they eat" (Web Blog Post). Retrieved from https://www.benefitnews.com/list/4-ways-to-help-employees-make-better-choices-about-what-they-eat?brief=00000152-14a7-d1cc-a5fa-7cffccf00000


New analytics tool helps employers dig deep into turnover trends

Wondering what might be causing issues with your hiring and talent retention? A new analytics tool aims to help employers troubleshoot employee turnover. Read on to learn more.


One HR software provider is aiming to help employers better understand why workers fly the coop.

Namely has added a machine learning and data analytics product to its suite of offerings for HR departments, the company said Wednesday. Its tool, dubbed Benchmarking Package, allows HR teams at midsize employers to take a deeper dive into what might be causing issues with a company’s hiring and talent retention.

The machine learning technology distills company turnover data and compares it to information from similar employers in the system, says Eric Knudsen, manager of people analytics at Namely. The comparison data is taken from the more than 1,000 employers and 175,000 employees using Namely’s platform.

“Midsize companies who have historically lacked the skills to uncover these insights are getting a new view on the workplace that they’re building,” he says.

The turnover data is anonymous.

Reviewing termination data can give employers insight into the types of employees who are leaving and potentially lead to broader insights on workplace diversity. It also can help employers better understand how they stack up against the competition and whether the company has a healthy turnover rate, Namely says.

Lorna Hagen, chief people officer at Namely, says information like this can help employers get a sense of issues that may arise in the future.

“If I’m seeing pockets of people come from a certain area of work background with higher levels of attrition, what does that mean to my recruiting strategy; what does that mean to my product strategy? It impacts how you think about your company’s future,” she says.

HR departments are placing a higher value on data analytics, and HCM software developers are taking note. For example, Paychex recently added a data analytics feature to Paychex Flex, its HCM and payroll administration platform. The feature also provides users with data on hiring and turnover trends, and companies can anonymously compare data with similar employers.

During beta testing of Namely’s benchmarking product, Knudsen says the company was able to identify certain trends by looking at employer data. In particular, he says, Namely found a notable uptick in job abandonment, or ghosting. The rates of abandonment were higher for companies in the retail and real estate industries, he says, and lower for those in the non-profit sector. The company also found that managers with eight or more direct reports had higher rates of turnover.

Hagen says that employers who look at granular data are better able to understand why workers are leaving, which can help them take steps to reduce turnover immediately.

“It’s a much more interesting conversation, quantifying what is happening with your people,” she says. “The rolling 12 month turnover rate is an interesting metric but it’s not actionable. The ability to look by level or by department — those are ways to start thinking about action.”

Namely says the benchmarking package is available to all current clients, including identity access management provider OneLogin, retailer Life is Good, financial services company The Motley Fool and recruiter software company JazzHR. The price of the product varies based on company size, but typically varies per employee per month.

SOURCE: Hroncich, C. (16 January 2019) "New analytics tool helps employers dig deep into turnover trends" (Web Blog Post). Retrieved from https://www.benefitnews.com/news/new-analytics-tool-helps-employers-dig-deep-into-turnover-trends?feed=00000152-a2fb-d118-ab57-b3ff6e310000