Administrative and Executive Overtime Exemption Just Got Harder

Last week, the Biden administration announced changes to the Wage and Hour rules regarding exemptions from overtime. Many employers put administrative and executive type employees on salary and expect them to be exempt from overtime. Salaried doesn’t necessarily mean they are exempt on its own. These new rules will make that exemption a good bit harder to take and could significantly affect our members.

As mentioned above just because you pay an employee a salary it doesn’t mean that they are automatically exempted from overtime. It is possible to pay someone overtime when they are on salary but that is beyond the scope of this article.

The most common “misclassification” violation we have seen in gins over the years is claiming an employee is exempt from overtime when they are not. In order for the executive or administrative employee to be exempt from overtime they must meet two things. The first is the duties of the job must meet the exempt duties and they must be paid above a certain amount on a salary basis. The duties have not changed and can be found in the Fact Sheets HERE.

What has changed is the minimum weekly salary that these employees must be paid in order to qualify even if they meet the duties of executive, or administrative work. Beginning July 1, 2024, employees must make $844 per week or $43,888 per year and starting January 1, 2025, employees must make $1,128 per week or $58,656 per year. The next change will be determined by the department by a formula by July,1 2027.

What does this mean? Many gins use the executive or administrative exemption for key office and gin employees. Careful consideration of these new pay levels in combination with the duties found in the Fact Sheet 17 linked above must be given. It is very easy to mis-classify a worker as exempt when they’re not and this rule makes it that much harder.

Wage and Hour’s Page on New Rule

You can find information on paying a non-exempt worker a salary. It can be done but it takes some planning. Search the internet for “salaried non-exempt” or “calculate overtime for salaried employee” and you’ll find a lot of articles by attorneys and HR professionals on how to navigate those waters.


New Farm Labor Survey Released – H-2A Wages will increase in January

The Department of Labor uses the USDA NASS Farm Labor survey to develop the Adverse Effect Wage Rate (AEWR) for H-2A purposes. For many years the average wage in the FLS has become the AEWR for the following calendar year. The reason for the AEWR is that in the law that established the H-2A program, it says that the importation of workers shall not have an ‘adverse effect’ on local wages. The agency uses this survey to make sure the wages will not be impacted by bringing foreign workers in and displacing local workers with ‘cheaper’ foreign workers.

The FLS is conducted over the course of a year by the National Ag Statistics Service (NASS). NASS has been collecting this data for many decades. It is not collected for the purpose of use by the DoL and DoL has no influence on how the survey is conducted. It is more targeted (more surveys done) than the Bureau of Labor Statistics (BLS) Occupational Employment Wage Survey (OEWS) in the agricultural community and is ‘thought’ to be a better representation of the ag community as a whole.

The Survey shows an increase in most Southeastern states of about a dollar per hour (See Table). The new wages will kick in when the DoL publishes them in the Federal Register. This will likely be right at the end of the year. Watch your inbox or keep up with your agent or contractor for exactly when the higher wages are due.

North Carolina14.9115.81
South Carolina13.6714.68

We have a lot of problems with just using the FLS as the only means to determine the AEWR. The Farm Labor Survey, as mentioned before was not designed as a survey for AEWR purposes. NASS does not discriminate between H-2A users and non-users. Workers in corresponding employment or neighbors can be influenced by the H-2A wage locally. More H-2A workers are being employed today than ever before. Additionally, the FLS does not take into account any of the other expenses that go a long with the program such as inbound and outbound transportation, housing, meals (in some instances) and in the case of more and more states, overtime for farm workers. While the FLS may capture more workers in ag than the OEWS and may be a better statistical representation of pure wage it does NOT take into account the expense to the employer (effective wage on the employer).

We will have more information as it comes out.


Statement on Recent Wage and Hour Activity

A week ago, January 10, 2022, the Wage and Hour Division of the Department of Labor posted a press release stating that 80 percent of gins investigated owed back wages or penalties for non-compliance with Labor Laws. Articles citing this press release have been published in newspapers and trade publications, large and small.

On January 12, we released the statement below. It is never any of our members intent to break the rules. Labor laws and rules governing agricultural labor are complex and often hard to understand. We are working with the Wage and Hour division and others on improving compliance among our members. Please give us a call if you have any questions regarding our statement.

H-2A Wages Increasing

This past week, the Department of Labor has published the new Adverse Effect Wage Rate for 2022. The new wages actually start on December 29 and until new AEWR’s are published next year. This means that if you are using H-2A labor, Starting December 29, 2021 you will need to pay them and US workers in corresponding employment the NEW AEWR. These rates are set by state or groups of states.

State2021 AEWR2022 AEWR (Dec 29, 2021)
North Carolina$13.15$14.16
South Carolina$11.81$11.99

We’re also monitoring potential changes that the DoL has recently published as a proposed rule. The proposed rule has the potential to significantly affect the H-2A wages in many industries. We’re not clear on exactly how the proposed changes will affect gins that use the H-2A program. We will update as things firm up.

Wage and Hour Continues Gin Emphasis Program

Even though this year has barely gotten under way for most gins, the Wage and Hour Division of the Department of Labor has started making its presence felt in much of our region. We have recently received reports of virtual investigations in NC, SC and AL. We understand an in-person investigation is scheduled but has yet to be conducted in SC.

This is the second year of a regional cotton gin emphasis program. Association staff has met with Wage and Hour staff in both NC and SC recently. It was a very constructive meeting. They provided the documents linked at the bottom of this article for ginners resources. We can only assume that this emphasis program will continue until a low number of violations (even very minor ones) are found. This is the first time that NC has been involved. It is unknown how many gins will be inspected in any given state but last year 10-15 gins across the region were visited.

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