Overtime rules
November 30, 2016
So. A federal judge* managed to put a hold on Obama’s move to increase the threshold for overtime exemption. Very likely any challenge to this will fail to succeed before a new Administration takes over the country. Most would bet there will be no backing for Obama’s plans under the new regime.
NIH is planning to steam ahead with their NRSA salary guidelines that met the Obama rule. Workplaces are left in a quandary. Many have announced their policies and issued notification of raises to some employees. Now they are not being forced to do so, at the last hour.
My HR department has signaled no recent changes in plans. Postdocs will get raises up to the Obama threshold. There are some other categories affected but I’ve seen no announcement of any hold on those plans either.
How about you folks? What are your various HR departments going to do in light of the de facto halt on Obama’s plans!
__
*activist judge
DrugMonkey 
November 30, 2016 at 11:33 am
Here the raises are going ahead, but all other changes (switch from exempt to non-exempt) are on hold. So no postdoc revolt.
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November 30, 2016 at 11:38 am
Everyone already had their raises. All non-exempt personnel have already been transitioned to call in and out everyday and overtime is not allowed unless previously approved for my techs. I actually don’t know what they are going to do…I assume just keep it as is.
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November 30, 2016 at 11:52 am
My institution canceled the raises.
“[…] Because of that, we are suspending, effective immediately, the announced salary increases and the changes in overtime eligibility while we consider the court’s determination and the impact that it has on our employees. […]”
(From an email to all faculty & staff at all campuses statewide)
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November 30, 2016 at 12:02 pm
My institution took back changes to salary and exemption until “further direction from the courts” They apologized for the confusion.
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November 30, 2016 at 12:07 pm
I’m already paying our post-docs above the recommended base. However, not all of my colleagues are. Our HR decision was to go ahead with the change to lift all of the other post-docs below the line up to parity. To my knowledge, this is a departmental decision and not a university wide one, but others milage may vary.
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November 30, 2016 at 12:20 pm
My institution is moving forward as planned.
This results in a few k/year bump for postdocs that are being paid the university minimum, which was already pretty decent given the COL here. Other research staff including technicians and staff scientists were previously non-exempt and will remain that way, so PDs were really the only ones affected by the updated FLSA standards. I’m a PD at year 2 of an NRSA, so the change affects me very little.
I’m curious how this plays out for other universities, especially the ones paying their postdocs way, way less than the NRSA scale. I would be rioting if someone said I’d get a huge pay raise and then backed out. Did most of those universities end up saying they’d switch PDs to non-exempt status?
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November 30, 2016 at 12:25 pm
Gary McDowell (@biophysicalfrog) has been gathering info on what institutions planned to do initially & what they’re doing now in light of the injunction:
http://futureofresearch.org/flsa-and-postdocs/
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November 30, 2016 at 12:33 pm
Calling this “an Obama initiative” is more than slightly misleading. It’s the result of a rule change* that, under the Administrative Procedures Act, cannot be just reneged upon with the stroke of the executive pen. Indeed, the reason that the judge gave for staying the rule was concerns raised upon APA compliance in creating the rule — a process that began over four years ago. And even if the new administration says “I won’t defend the rule,” workers and their representatives would have standing to do so. That’s what is supposed to happen in administrative law: It’s not all supposed to be about immediate partisan preferences, it’s a variety of the rule of law and that requires process, not just proclamation.
Either way, it’s a years-long process… and if the rule is later validated, institutions will potentially become liable for back pay if they don’t comply now.
* As an aside, there’s a good argument (buried inside the rest of the legal jargon) that this rule change is the least-drastic mechanism to comply with both basic federal labor law and antidiscrimination law, so don’t expect a clear decision in the end in any event. If the rule change gets blocked, that opens employers up to individual lawsuits… which have to be defended, even if they are won.
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November 30, 2016 at 12:48 pm
Obamatime™
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November 30, 2016 at 1:15 pm
As far as I know, we are raising our PD minimum salary on Dec 1st as previously decided, to the 47.6K mark. Was specifically mentioned we’re doing this to stay competitive with peer institutions. What isn’t clear, and they may not move forward with, is changing rules for salaries staff scientists/techs that make under the 47K.
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November 30, 2016 at 1:24 pm
My institution is reviewing the latest news and considering options for how to proceed. Postdocs who had already been switched from exempt to non-exempt will stay that way until decisions are made.
A typical postdoc salary here is in the 30 thousand something range, so the new rules are a really big deal. Before the federal judge put a hold on the new rule, the plan was for PIs to make the decision of how to handle the salaries of current postdocs and for all new postdoc positions (and requests for funds for postdocs) to meet the new salary minimum. If I found out that my salary was not actually going from $35,000 to $47,000, I would be pretty disappointed.
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November 30, 2016 at 1:32 pm
From the official email:
“After careful consideration of the facts and implications, (Our MRU) leadership has made the decision to postpone the transition of our jobs that were planned to become non-exempt. This means that your employees who were originally scheduled to become non-exempt on Monday will continue to be paid monthly and will not be required to use (time keeping system) to track their time.”
Post-doc salaries have already changed. Any salary changes will stay, but those who would have been made non-exempt, are not changing until the hold is lifted.
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November 30, 2016 at 2:00 pm
Our payroll (at my MRU) was already set for the change. The letters about the salary increases also had already gone out. I don’t think there is any way they could stop it now. I’m sure they could claw back the money, and officially they told us they are thinking about what to do about the court ruling, but I don’t think we are going back. Salaries for post0docs went up a little, but the biggest increases were for techs.
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November 30, 2016 at 2:01 pm
“We will continue to honor these commitments and will make the prescribed salary changes effective December 1. However, all other aspects of implementing the new overtime rule, including transitioning certain positions from exempt to non-exempt status prior to November 27, 2016, will remain unchanged pending the resolution of the injunction”
Between this and the proliferation of postdoc unionization, not really sure where the position is really heading now.
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November 30, 2016 at 2:29 pm
At my university, we’re moving ahead with the raise for postdocs.
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November 30, 2016 at 2:51 pm
My institution (MRU) is going ahead with the raises. The stated reason is that we want to remain competitive for recruiting talented people.
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November 30, 2016 at 3:58 pm
I’m at a UC so I’m unionized and get the NIH scale already, but the union was pushing for an increase due to cost of living here.
My friend just started his own lab in a super cheap area of the country. He chose to pay his PD the NIH minimum, which is almost double the usual PD salary at his uni. He thinks this decision is what enabled him to attract a really, really good postdoc to a crappy area to work under a newbie PI. PD is happy living like a king and is super productive, and my friend is getting grants faster than anticipated as a result.
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November 30, 2016 at 6:10 pm
My ILAF is sticking with the raises. They bump the bottom three rungs up to the 47,500, leave the rest where they are, and then align with the NIH minimums in July.
I’m glad to see it happen, a little bummed that I won’t be seeing anything extra since I’m over the cap. Especially rueful since the min postdoc salary has gone up by about 25% since I started, but my timing is such that I haven’t seen much benefit from it.
Also, to reiterate, for those of you who can, check out and see if your institution has been updated here:
http://futureofresearch.org/flsa-and-postdocs/ (Click under the first tab: How institutional plans have/have not changed since the injunction)
If not, consider dropping them a line at info@futureofresearch.org to have them update their list.
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November 30, 2016 at 7:40 pm
Isn’t it awesome that universities get to say “we already told someone that you will pay them more, so suck it”?
Postdocs at my university have yearly contracts.
If there’s no law requiring higher post doc salary, why not let the salaries be the amounts in their contract?
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November 30, 2016 at 8:53 pm
Was on the T yesterday in Boston and random guy, not an academic was talking about this, basically saying that they were going to keep the raise because the bosses had figured out that taking it back would lead to a lot of unhappy campers leaving and the ones who would leave would be the ones they wanted.
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December 1, 2016 at 10:27 am
I was wrong. My MRU has stopped the the raises for staff.
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December 1, 2016 at 10:32 am
My private institute have post-docs on the higher salary and in a special category since they can’t do overtime. I don’t see that changing, they’ll need to be competitive and not have lower salaries than the coast institutes….
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December 1, 2016 at 11:39 am
Interesting how coastal postdocs are always complaining about cost of living while flyover institutions cry about having to match the coastal salary or nobody will come.
Sets up an interesting dynamic.
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December 1, 2016 at 12:09 pm
This is fascinating to me. My institution (not a University) closed their eyes and went lalalalala when the changes were first announced – which was shocking, because the HR department here is an absolute nightmare, totally obsessed with compliance in a way that actually causes regular problems with hiring and work flow. We could not figure out why HR was refusing to take formal action to implement policies on the new overtime rules. Looks like they bet on a conservative victory this election cycle, and their bet actually paid off.
I had already provided appropriate raises per NIH minimums. I always have – and will continue – to explicitly remind my lower wage workers (the research techs) that although overtime happens in science, and there will be weeks when they will be expected to work over 40, I expect an average of 40 and I mean it. I insist they keep track and take non declared days off to account for busy weeks.
Meanwhile, my colleagues down the hall pay their postdocs crap and never have this conversation with their techs. It is annoying, to put it mildly.
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December 1, 2016 at 12:14 pm
My institution sent out an email last week saying not to worry, the declared raises would still be implemented today as planned. Today, they sent out another email saying just kidding, all the changes weren’t happening. People are super thrilled with the administration right now.
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December 1, 2016 at 1:30 pm
“Interesting how coastal postdocs are always complaining about cost of living while flyover institutions cry about having to match the coastal salary or nobody will come.”
-Well, most of the coastal (lets be honest, it is Boston, NYC and San Fran) are just NIH minimum. Currently only Stanford and the NYU schools do more (as far as I’m aware).
It is definitely an oft overlooked consideration in which labs to join (along with things like state income tax).
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December 1, 2016 at 1:54 pm
C.E. Petit: “Either way, it’s a years-long process… and if the rule is later validated, institutions will potentially become liable for back pay if they don’t comply now.”
But the law didn’t yet go into effect. Even if the new rule is ‘validated’, the new rules still wouldn’t have gone into effect December 1 as scheduled. So there’s no ‘back pay’. You can’t be owed pay due to a rule that wasn’t yet in effect.
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December 1, 2016 at 2:02 pm
UC Denver just sent out an e-mail saying this changes nothing, raises still planned
I’ve been impressed with UCD’s treatment of PDs:
– Unlike many other institutions, if you get an NRSA fellowship, they don’t pretend you’ve suddenly dropped off the face of the earth and quietly cancel your health insurance.
– They are constantly giving the career advisement to postdocs that everyone is calling for
-They limit the number of years one can be a postdoc
– Now they’re not taking back a promised raise just because they aren’t legally obligated to do so
These shouldn’t be high bars for institutions to clear, but they seem to be, and I have to praise UC Denver for treating us better than a lot of other universities
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December 1, 2016 at 2:02 pm
“Interesting how coastal postdocs are always complaining about cost of living while flyover institutions cry about having to match the coastal salary or nobody will come.”
This is because biologists can’t do simple math, even if they have a Ph.D.
“I’ll get paid $5k more and all I have to do is live in the SF Bay area or Boston where rents and everything else are twice as much? Sounds great! Maybe I’ll have children!”
Ha ha ha. I love laughing at other people’s bad decisions.
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December 1, 2016 at 2:07 pm
“Meanwhile, my colleagues down the hall pay their postdocs crap and never have this conversation with their techs.”
Do they by chance hire a lot from India or China? Cheap workers stealing American jobs!
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December 1, 2016 at 2:13 pm
University of California postdocs are part of the UAW. They negotiated a new salary scale based on that rule. The scale starts at $48,216 and increase by about $2k per year of experience. So postdocs have a built in raise each year. Since it is negotiated with the union, there’s no going back on that because of the federal judge.
What’s interesting is that the state of California has their own exempt from overtime rules, which were always more stringent then the feds, until this change. California’s rule is that anyone making less than twice the minimum wage needs to be paid overtime. California, this year passed a law increasing the minimum wage to $15/hour by Jan 1, 2022.
Minimum wage here is currently $10/hour. In 2017 it goes to $10.50. In 2018, $11. Then it increases by $1 each year until $15 in 2022.
This means that the minimum to be exempt from overtime looks like this (hourly rate*52*40*2):
2017, $43,680
2018, $45,760
2019, $49,920
2020, $54,080
2021, $58,240
2022, $62,400
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December 1, 2016 at 2:31 pm
@Another Assistant Prof
What you describe for your lower level techs is actually illegal.
“They will be expected to work over 40, I expect an average of 40 and I mean it. I insist they keep track and take non declared days off to account for busy weeks.” That’s known as paying for overtime with compensatory time.
The rules are clear. If the employee is non-exempt and they work more than 40 hours in one week, they must be paid time and a half for any amount over 40.
(There’s an exemption for public sector employees. They can be paid in comp time, but they have to agree to it ahead of time (in writing) and it has to be at a rate of 1.5 times overtime hours worked. You also need to track it, because if they quit they need to be paid in cash instead of comp time.)
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December 1, 2016 at 3:04 pm
This is because biologists can’t do simple math, even if they have a Ph.D.
No, it is because everyone is convinced that they are screwed and deserve what they imagine are the benefits of that guy over there.
Big coastal elite University postdocs crying for cost of living adjustment never seem to think that they already enjoy that adjustment. Instead they say “we need to have everything the non-coastal folks have so we need even more money to get it”.
What I’m hearing above is that then the non-coastal Unis think “we have to match the salary number to lure the postdocs here to Podunksville”.
and the cycle repeats. And, as I’ve detailed, the kids these days are making waaaaay more in inflation adjusted dollars than the postdocs were in my day. but no matter.
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December 1, 2016 at 3:58 pm
@DM: Your statements seem to support what I said more rudely. Maybe we agree, except in how to deliver the message.
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December 1, 2016 at 4:02 pm
Update on my MRU, those who were moving to non-exempt won’t move. the Year 0, Year 1 and Year 2 postdocs will get raises, however the staff that were to get raises will not. I anticipate lots of disgruntlement.
The post-docs are being changed under NOT-OD-17-002 sent out 11/07/16
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December 1, 2016 at 4:12 pm
Our uni initially said they would stick with implementing the changes, then rescinded everything today at the 11th hour. No changes in exempt versus non exempts status, no raises.
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December 1, 2016 at 5:11 pm
@Drugmonkey “Big coastal elite University postdocs crying for cost of living adjustment never seem to think that they already enjoy that adjustment.”
I don’t get what you mean. Do you mean that because both salaries and cost of living are higher in SF, NYC, and Boston, we’re in the same boat as postdocs in say, Louisville or Cincinnati, where they make less but cost of living is cheaper?
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December 1, 2016 at 6:03 pm
I mean that coastal elite postdocs always say they need to be adjusted upward for cost of living. What they fail to ever consider is that perhaps they are already “adjusted upward” and are in fact right where they should be. And correspondingly the postdocs in Louisville are making a bonus to bribe them not to live in Boston.
but of course the living standard of the postdoc in the cheapest cost of living environment is considered to be default expected value. And therefore coastal metropolis types feel horribly maltreated that they can’t have own a house, have 2-3 kids and support a nonworking spouse in the Bay Area on one postdoc salary like is allegedly possible in Peoria or Fargo or some such.
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December 1, 2016 at 6:21 pm
So this is exactly what has me confused. Why are these salary increases portrayed as so dramatic if all the unis in Peoria and Fargo are already paying NIH standard to lure people away from the ivies on the coasts?
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December 1, 2016 at 6:32 pm
What does that have to do with it?
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December 1, 2016 at 6:48 pm
I’m getting 2 sets of conflicting info:
1) These new laws were going to be problematic to unis and PIs, because many postdocs did not make the NIH minimum and thus stand to get a nice raise. Coastal unis would be less hard hit than those in the central US as they already pay NIH standard.
2) Central unis pay NIH minimum to lure postdocs from the coasts with a better standard of living, the tradeoff for the postdoc is between spending $$ and location.
Where am I going wrong?
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December 1, 2016 at 6:58 pm
@duke-of-neural, “They limit the number of years one can be a postdoc
– Now they’re not taking back a promised raise just because they aren’t legally obligated to do so”
It would be awesome if UCD would say that after x years as a post-doc, they will start transitioning them into permanent positions, giving them a raise and covering part/all of their salary from hard funds, and helping them apply for funding. Just telling people that they can no longer be a postdoc is a shitty way to reduce postdoc hovering.
Same with the second argument. Nice of UCD to give raises that they aren’t obligated to do. It’s not their money! It’s the PIs who have to find the money and now need to do the same work with less people. I also vote for UCD doubling the salary of the postdocs there. It will kill one competitors lab there (kidding).
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December 1, 2016 at 7:26 pm
Arr- does it help if I point out that even within University there are probably those PIs who are shrugging and those set to pay raises of $10k for several “postdocs”?
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December 1, 2016 at 8:03 pm
“1) These new laws were going to be problematic to unis and PIs, because many postdocs did not make the NIH minimum and thus stand to get a nice raise. Coastal unis would be less hard hit than those in the central US as they already pay NIH standard.”
-Even PIs previously paying the NIH minimum had to shell out about 5 grand per entry level postdoc to get over the cap. That’s a lot of reagents if you’ve got 3-4 PDs.
There’s no solid data on what average postdoc salaries at different institutions looks like, but I tend to agree with DM that the good labs with steady, solid funding in lower COL places probably offer competitive salary to places like Harvard.
@DM, I think it is because the term “minimum” is used. People in high cost of living areas assume they should be getting paid more than the minimum or even the average, because that’s generally how salaries work in those areas. They don’t stop to think about how the market distortion of people working in high COL areas (where the grants are) might actually artificially inflate the minimum salary. I never actually did until you just mentioned it.
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December 1, 2016 at 8:15 pm
ah. thanks.
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December 1, 2016 at 9:05 pm
At my institution some postdocs are at the new minimum, some are only a few thousand dollars away, and a rare few will be getting an $11-13k raise. I’m really happy for the latter, I hope it provides them a lot more financial freedom to keep their head above water or raise it up above water if they were below it.
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December 1, 2016 at 10:31 pm
jmz4- or even “dictate” or “drive” rather than “artificially inflate”.
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December 1, 2016 at 11:22 pm
@JL Well, I think making positions permanent is a bit unlikely. If they have institutional funding and a desire to make a PD permanent, they could do that already, and the 6 year limit helps force that transition if the means are there.
The funding issue, that isn’t unique to UCD, that’s everywhere, it’s a product of having the PDs be employees of the independently funded PIs. Outside of institutions with generous endowments, are there any that are supplementing PD salaries?
I maintain they have good policies, I think what you’re suggesting would go beyond good policies and would require Ivy league level funding, not simply making ethical choices.
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December 2, 2016 at 12:42 am
@duke, training and, especially, continued health insurance are good policies. I don’t see how the other two are. I bet way more postdocs lose their job because of the time limit, than manage to “force that transition”. I agree this is because the money is not there. That’s precisely the point. There’s no generosity or good ethics in UCD giving raises when the money has to be raised by the PIs. That’s just the university avoiding trouble for itself by passing it down to the PIs, as usual.
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December 2, 2016 at 8:45 am
This law also affects staff if they are salaried such as lab managers where I am (techs are hourly). Was a bit of a surprise as I was only focused on post-docs.
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December 2, 2016 at 8:55 am
JL-
“Postdoc” is a temporary training position. Should Universities also make a permanent place for graduate students?
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December 3, 2016 at 1:56 am
DM, That makes no sense and doesn’t follow from what I have written.
Duke had claimed that UCDs policy of time limits is pro postdocs, I argued that it isn’t.
Postdocs are trying to find a permanent, or less volatile, job. They stay in the postdoc often because they can’t find one of those jobs. Setting a hard limit on how long they can be postdocs is not a way to help them. It just ads to the pressure on them.
I don’t buy the argument that this pressure is for their own good. Most of them don’t need the extra pressure to be motivated to move on. What they need is a good option on the other side.
If the number of PhD degrees awarded every year was capped and a small fraction of the number of students, would it be a pro-student policy to set a hard time limit to graduate?
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December 5, 2016 at 2:05 pm
@UCProf… my research techs are actually hired as exempt employees – as am I – so it is not illegal. I do not know what is standard at other institutions, but that is how my non-uni place of employment has managed to get things classified. That is *not* the case for hired student technicians, who are help strictly to overtime pay standards.
But, more broadly, have you met anyone anywhere that has ever paid a tech overtime, even if technically, legally, they should?
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December 26, 2016 at 11:43 am
Any more commentary on this now that it’s on the end-of-year roundup?
WRT JL’s comments above, I’m a science peon I mean grad student at an MRU that also happens to be Ivy League-ish, i.e. has an endowment to throw around. They sent out an email saying everyone would get raises and then reneged when the judge blocked the rule.
The main people affected by this were staff/research scientists that actually would have seen a raise but didn’t. According to a posting on the HR site, that’s ~350 people.
Sure would be nice if the school put its endowment where its mouth is and actually put money behind steady jobs for scientists. They could even call it a “pathway beyond the professoriate”.
I know it’s not like this has ever come up on the blog before but in this specific case I notice people are talking mainly about how the FLSA ruling affects post-docs, not staff/research scientists.
So does pay for research scientists matter in the grand scheme of things? I think there are more than a few that are doing work that’s more at the “salaried” level not the “timeclock” level. In a perfect world would unis (help) pay for research staff? Could it ever happen in this world? Or is the only option for people that want a steady job actually collecting data to go be a science monk at Janelia Farms or Scripps or someplace like that?
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December 26, 2016 at 8:18 pm
Science monk?
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December 26, 2016 at 11:16 pm
science monk: someone who moves to a privately-funded research institute in an isolated place where nothing will distract them from thinking about their question 24-7
Sorry if my comment was too wordy.
Main point is that it seems like for every post-doc in Peoria that didn’t get a raise there’s another one in the lab next door that did.
I’m wondering whether the same would hold true for research scientists (not post docs). If there’s a lot more staff scientists who ended up not getting raises, what do people think about that?
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