On November 23, we reported that a federal judge in Texas had issued an injunction blocking implementation of the long-awaited new Fair Labor Standards Act exemption regulations. Those regulations would have, among other things, required that exempt employees be paid no less than $913 per week or else they would be entitled to overtime pay if they worked more than 40 hours in a work week.

The Department of Labor has now filed an appeal, seeking to have the injunction lifted. In view of the upcoming change in administration in Washington, the appeal may be little more than a symbolic gesture. The appellate court has set a post-inauguration date – January 31 – as the deadline by which all legal papers must be filed and will thereafter schedule oral argument. But President-elect Trump's choice for Secretary of Labor, Andrew Pudzer, may sound the death knell for those regulations. Although it is unclear exactly what Pudzer might do, as an outspoken critic of the regulations, he could likely direct the agency to withdraw the appeal entirely, effectively closing the chapter on a book that was never opened.

New York employers are reminded that the State imposes different rules, more generous than those required under federal law. To maintain the exempt status of an employee, the following table sets forth the new weekly salary minimums, expected to take effect on January 1. Employers are also reminded that paying an otherwise non-exempt employee a salary does not make them exempt. Whether an employee is exempt depends also on the duties the employee performs. Sound advice is to obtain a legal opinion on whether your employees are correctly classified. The penalties for failing to pay overtime to misclassified employees are extreme.

New Overtime Guidelines for Employers in New York State

"Large" employers (11 or more employees)

• $825 per week on and after Dec. 31, 2016
• $975 per week on and after Dec. 31, 2017
• $1,125 per week on and after Dec. 31, 2018

"Small" employers (10 or fewer employees)

• $787.50 per week on and after Dec. 31, 2016
• $900 per week on and after Dec. 31, 2017
• $1,012.50 per week on and after Dec. 31, 2018
• $1,125 per week on and after Dec. 31, 2019

Employers in Nassau, Suffolk and Westchester Counties

• $750 per week on and after Dec. 31, 2016
• $825 per week on and after Dec. 31, 2017
• $900 per week on and after Dec. 31, 2018
• $975 per week on and after Dec. 31, 2019
• $1,050 per week on and after Dec. 31, 2020
• $1,125 per week on and after Dec. 31, 2021

Employers outside of New York City, Nassau, Suffolk and Westchester Counties

• $727.50 per week on and after Dec. 31, 2016
• $780 per week on and after Dec. 31, 2017
• $832 per week on and after Dec. 31, 2018
• $885 per week on and after Dec. 31, 2019
• $937.50 per week on and after Dec. 31, 2020