Please note that there has been a preliminary injunction placed on the implementation of the Fair Labor Standards Act (FLSA), and campus compliance plans have been modified. Please see the campus update regarding FLSA's planned changes for more information.
By Leah Colvin
On December 1st, changes to the Fair Labor Standards Act (FLSA) will go into effect. This article addresses some common questions and concerns about how the new FLSA rules will affect postdocs at CU Boulder.
What is the FLSA, and how is it changing?
The FLSA is a federal labor law first enacted in 1938 that sets minimum wage provisions, equal pay, child labor restrictions, and other related federal labor and employment law regulations. The FLSA provision that will change in December regulates which employees must be paid time-and-a-half for overtime hours worked and are paid on an hourly basis (non-exempt employees) versus those who are salaried (exempt employees). Overtime work is any work beyond 40 hours per week, and is tracked on a weekly basis.
In the past, the minimum annual salary at which overtime does not have to be paid was $455 per week, or $23,660 per year. Beginning on December 1st, this minimum threshold will be raised to $913 per week, or $47,476 per year. This minimum will automatically increase every three years thereafter to reflect prevailing wages.
How does this affect postdocs?
Per the Department of Labor’s guidelines on the Overtime Final Rule and Higher Education, “postdoctoral researchers…are generally considered professional employees and are subject to the salary threshold for exemption from overtime.” Postdocs whose primary duty is teaching, however, are subject to the teaching exemption and thus not eligible for overtime compensation.
If a postdoc is making over $47,476, s/he may notice no difference on December 1st. For postdocs making less than $47,476, one of two things may occur: 1) their salaries may be raised to $47,476 and they will remain exempt employees; or 2) they will be converted into a non-exempt position, meaning that they will be paid on an hourly basis. At CU Boulder, the decision on whether to maintain postdocs as exempt and raise salaries to $47,476 or convert postdocs to nonexempt status is at the discretion of each department. If you are affected by this change, you should receive an Addendum Salary Increase Notice or Addendum Overtime Eligibility Notice from your department. We recommend talking to your mentor and the human resources representatives in your department to learn how your status will change on December 1st.
What will happen if my position is changed to non-exempt (overtime eligible)?
The biggest change if you are converted to non-exempt will be that you need to start documenting your work hours. You will also need to understand and follow your department’s overtime practices; some departments may require you to receive advanced approval to work over 40 hours per week. This means that, without advanced approval, you must stop working once 40 hours has been reached in any given week. However, it is not allowable to ask you to work over 40 hours a week without recording any hours worked over 40 hours. Under the FLSA, any hours worked over 40 must be compensated for overtime eligible employees.
Overtime may be paid via wages or by comp time; please check with your department to determine how your overtime will be distributed. Comp time is additional paid time off (at a time-and-a-half rate) that can accrue up to 240 hours; comp time earned over 240 hours is paid out to the employee. Any unused comp time must be paid out to employees and cannot be forfeited.
What if I am paid a stipend on an individual fellowship (such as through the NIH, NSF or DOD)?
When you are paid on an individual fellowship (i.e., your job title is Post-Doctoral Fellow), you are considered to be in an employment relationship with the granting agency rather than with CU Boulder. Please check with your Program Officer at your granting agency to determine how your compensation will change in December 1st. The NIH and NSF have released statements concerning FLSA compliance for postdocs, and the NIH has released increased Kirschstein stipend levels for FY17 based on the impending FLSA minimum salary change.
For those Post-Doctoral Fellows paid through the NIH, per NOT-OD-17-002, Kirschstein-NRSA recipients earning less than $47,476 will need to request funds to cover stipend increases through grants.gov using the Parent Announcement for Administrative Supplements to Existing NIH Grants, PA-16-287. If you are paid through an individual fellowship, please contact your Grants Management Officer. If you are paid through an institutional training grant, please contact the Principal Investigator, as such requests are made at the program level.
If your stipend is over $47,476, it is unlikely that anything will change.
Where can I learn more?
The Postdoc Association of Colorado (PAC) has organized an FLSA Information Session for postdocs and their mentors with Kym Calvo, CU Human Resources Interim Director of Compensation: