FLSA update injunction granted: What happens now?

FLSA update injunction granted: What happens now?

*This post may be subject to change, and may be updated as more information comes in – times and dates of additions will be noted – UPDATE NOV 28: WE WILL START UPDATING WHAT HOW INSTITUTIONS HAVE/HAVE NOT CHANGED THEIR PLANS POST-INJUNCTION ON THE FLSA AND POSTDOCS RESOURCE HERE*

 

Updates to the Fair Labor Standards Act (FLSA, which affects academic workers, including postdocs) were due to go into effect on Dec 1st,  2016 requiring either a minimum salary for those with non-exempt job duties of $47,476, or the use of timesheets and payment of overtime at time-and-a-half over 40 hours in a work week. This implementation has now been delayed.

 

A hearing was held on November 16th with 21 U.S. states filing a preliminary injunction against the Department of Labor to delay the December 1st implementation of these updates to the FLSA. The injunction (found here) was filed by 21 states (Nevada; Texas; Alabama; Arizona; Arkansas; Georgia; Indiana; Kansas; Louisiana; Nebraska; Ohio; Oklahoma; South Carolina; Utah; Wisconsin; Kentucky; Iowa; Maine; New Mexico; Mississippi; Michigan).

 

The injunction has been granted and applies nationwide, including states that were not part of the filed motion (see the Memorandum Opinion and Order here). The future of the entire update is now uncertain as the update is already a target for repeal by House Republicans in the new administration. The changes will not be required on December 1st, and possibly not at all. We will continue to monitor the situation.

 

Our latest update and summaries of earlier data collection efforts described in our paper illustrate that there was still not a complete picture of what was happening at most institutions, but that the majority of the postdoctoral workforce was due to see salary raises. Our most recent data showed that 69% of postdocs would have salaries raised (at 87 institutions); 6% of postdocs may have seen salaries raised or have hours tracked (at 19 institutions); 3% of postdocs would be hourly (at 12 institutions); and for 22% of postdocs we simply did not yet know (from 220 institutions). What will happen next as a result of this injunction?

 

Early indications suggest that the injunction has come too late for most, as the plans and indeed some payroll cycles have already begun at many institutions. We will update our resource with plans at institutions, but we tentatively predict that the situation at many places will be similar to the current situation: most institutions will be at or follow the NIH NRSA stipend minimum, but if individual PIs pay postdocs less, that will be a matter for individual institutions (or departments?) to deal with, and will no longer be a violation of federal labor law. Several institutions raising salaries have already been in contact to say they are not changing their plans.

 

A blogpost issued today by Mike Lauer at NIH suggests also that NIH is continuing in its plans to raise NRSA stipend levels regardless of this injunction. It would be interesting for NIH to reverse its policy now after so vocally championing raised salaries for postdocs (for example, in the post “Fair Pay for Postdocs: Why We Support New Federal Overtime Rules coauthored by NIH Director Francis Collins). UPDATE 4:00PM EST 11/23: NIH has confirmed that they plan to proceed with adjustment to stipends as described here.

 

There are certain postdocs who will definitely not see a deviation from the current plan going into effect on 12/1. Institutions such as Stanford, the Whitehead Institute, WHOI, Icahn School of Medicine at Mount Sinai, Dana Farber Cancer Institute and some departments at MIT already had salaries or planned to implement salaries exceeding the FLSA threshold. In addition, the union representing postdocs at the University of California negotiated a contract for postdoc salaries that was certainly based on discussions about the FLSA but is now fixed regardless. Therefore 6,000 postdocs at the University of California plus 2,000 at Stanford, and maybe another 1,500 across these other institutions will see salaries above the FLSA regardless. This makes up about 15% of the total postdoctoral workforce.

 

But will all postdocs be treated equally elsewhere in the country? As we have discussed before, there is a wide range of postdoctoral salaries already at institutions, across the US, and with no federal law to mandate salaries above $23,660 at institutions, imbalances may grow. Salary information at institutions is incredibly hard to find and we may need to increase our efforts to do so to find out the possible effects of this injunction.

 

What about postdocs who are at institutions where their hours are being tracked? One issue on which we are seeking clarification is particularly concerning. If a postdoc has been moved to an hourly salary in preparation for the FLSA update, but now because of the injunction is on a salary that exceeds $23,660 – does that mean that the postdoc cannot claim  any hours worked above 40 per week? Has the overtime payment to which they were about to become entitled now been lost? Truly, these “40 hour postdocs” on an hourly wage may be in an extremely vulnerable position and be the worst casualties in this case. We will  be asking institutions  planning to have hourly postdocs whether they will continue in these plans.

 

What happens to postdocs on certain kinds of fellowships (particularly non-NSF or NIH) is also uncertain. We have heard that Brandeis, Brown and Rutgers Universities had not planned to raise salaries for postdocs on fellowship stipends below the FLSA, whereas many other institutions had explicitly included those postdocs in their raises. We had heard informally that the Department of Labor had not considered fellows to be exempt and were seeking written confirmation but this is now somewhat of a moot point. Postdocs on or seeking fellowships should be extremely cautious and find out exactly what their institution or institutions they are considering will be doing.

 

We will be issuing a formal statement very soon as to how we recommend institutions go forward, and will continue to update our FLSA and postdocs resource with information on this and related issues, and with updated data on what institutions are doing. UPDATE 22:30PM EST 11/28: You can view our statement here and see the institutional responses in the tab “How institutional plans have/have not changed since the injunction” on the FLSA and postdocs page.

 

If you have any information/questions/comments, please contact info@futureofresearch.org

8 Comments

  1. Loyola University Chicago has announced several days ago that they are canceling FLSA salary raises & overtime.

    Reply
    • When? I’m a postdoc in Loyola and I haven’t got any email for them. This totally sucks.

      Reply
      • I was told that by an assistant Prof from Loyola.

        Reply
  2. USF is keeping the raise. But, others that did not receive the raise will stay exempt at the old salary and will not receive overtime. This means they can work many hours over the 40 per week and not be compensated for it. Unfair!

    Reply
  3. University of Washington has cancelled the FLSA salary raises & overtime for post-docs as a result of the injunction.

    Reply
    • Hi I’ve just heard that they are going ahead – do you have a link you could send us? Thanks!

      Reply
  4. I work retail single mom an work well over 50 + hrs a week an not compensated it stinks to know that a judge put a injunction on it..he must of been compensated well for it.why as managers are we punished for trying to make a living. An the other employees get OT..I don’t get it.

    Reply
  5. Yeah I think this stinks. I am a Manager and do a fair amount of driving which most days are 10 to 12 hr day and only get paid for 35 1\2 a week. How is this fair. My employees who are hourly probably get paid more if you do the math

    Reply

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