Today I attended two packed sessions on the FLSA and its impact on companies. One session dealt with nonprofits and the second dealt with the FLSA overtime rules in general.
The session was entitled How the New Overtime Rule will impact our Nonprofit and what to do about it. It was presented by Michael Eastman and Christine Walters, both experience Washington D.C. attorneys. The gist of their presentation was that if you think nonprofits get a break from compliance then think again. In their opinion most nonprofits will be covered because they meet the requirement for enterprise coverage. The only exception would be if the nonprofit I a charitable, religious, or educational operating on a nonprofit basis and not in competition with some business offering similar service.
Even if the nonprofit is not covered as an enterprise then employees may be covered as individuals if they are engaged in the production of goods for commerce. Eastman pointed out that this is a very broad concept, even to the point that someone driving over a public road can be deemed to be engaging in interstate commerce.
They did make it clear that nonprofits may use volunteers to perform work for public service, religious or humanitarian reasons, but not as replacements for work done normally by paid employees
Walters talked about strategies to pay people, which I will focus on in a later blog post.
The FLSA for everyone else
Tammy McCutchen, of Littler Mendelson, P.C. presented Preparing for Change: Complying with the DOL’s Final Overtime Regulations. Ms. McCutchen is a former DOL administrator and she wrote the 2004 revisions that were adopted the last change. She presented in a smart and humorous way that also conveyed the seriousness of the change. She also indicated that no one is really skating free on this set of regulations. She expressed some exasperation at the DOL’s choice of numbers and dates for implementation. The December 1, 2016 date of activation is a Thursday, right in the middle of a pay week.
She said that nothing is going to get tossed out because the horse has left the barn and Obama is not going to put it back, so legislative efforts will be fruitless.
She then presented some examples of how to calculate overtime and pointed out nuances of the law I was not previously aware. So stay tuned for that blog post.