Effects of the Fair Labor Standards Act Update (or Lack Thereof) on the Postdoctoral Population

On December 1, 2016, the Fair Labor Standards Act (FLSA) was meant to be updated by the U.S. Department of Labor (DOL), and this update was predicted to have a profound effect on the academic enterprise, including postdoctoral researchers. The situation was greatly complicated when, on November 22, a federal judge issued an injunction to prevent the new rule from going into effect.

In a recent paper,¹ we described the key proposed changes to the FLSA, how they came about, and how the postdoctoral population was meant to be affected by the rule. The two key changes made by the FLSA update were: 1) increasing the salary threshold for exemption from overtime pay from $23,660 to $47,476; and 2) indexing the salary level so that it would be updated automatically every three years pegged to the 40th percentile of full-time salaried workers in the lowest-wage U.S. Census region, estimated by the DOL to be $51,168 in 2020. These changes were initially proposed in July 2015, and finally announced by Secretary of Labor Thomas Perez in May 2016, in response to a memorandum issued by the White House from President Obama in March 2014.

With the announcement of updates to the FLSA, there was a simultaneous announcement that postdocs would not be exempt from this rule and would in fact be targeted by it, as discussed in the article co-authored by National Institutes of Health (NIH) Director Francis Collins and Secretary Perez.²

Data Collection and Results
In an effort to create a database of how salaries were meant to change across the United States under the new FLSA rule, we gathered information and posted it at the FLSA and Postdocs Resource³ on the Future of Research website. In our paper, we presented publicly available data on how universities had planned to handle salaries of postdocs in STEM as of one month before the planned FLSA update. We collected the data by checking university websites and contacting human resources departments. We attempted to cover every U.S. higher education institution with >35 postdocs based on a 2014 National Science Foundation (NSF) Survey of Graduate Students and Postdoctorates in Science and Engineering.

With one month until the FLSA update was set to go into effect, 51% of the estimated postdoctoral workforce was likely/predicted to receive a salary increase, hours would be tracked for 1.5%, and tracking hours while promoting (but not mandating) a salary increase would be allowed for 4% of the postdoc population (Figure 1). However, the predicted effect was still uncertain for 41% of postdocs.
We continued to collect data at various timepoints before the predicted December 1, 2016, implementation deadline. With 20 days to go, 68% of postdocs were likely/predicted to receive a salary increase, whereas the predicted effect was still uncertain for 23% of postdocs (Figure 2).

With 10 days to go, we had contacted or researched all institutions in the NSF dataset of institutions with postdoctoral researchers, plus some additional institutions. Compared with 10 days earlier, the percentage of the postdoc population in each category remained essentially unchanged: 69% of postdocs were predicted to have had salaries raised, 6% of postdocs were poised to have salaries raised or hours tracked, tracking hours would be allowed for 3% of postdocs, and the predicted effect was still uncertain for 22% of postdocs (Figure 3).

The Injunction Halts Implementation
We had planned to continue collecting data until the implementation date of December 1, 2016. In the meantime, a hearing was held on November 16 that resulted in an injunction against the DOL being issued on November 22 to delay the implementation of these updates to the FLSA^.4 The injunction was issued in response to lawsuits filed by 21 states and applies nationwide, including in states that were not among those suing.⁵ The future of the entire update is now uncertain because the update is already a target for repeal by House Republicans and the new administration.⁶ Future of Research has issued a response to this injunction, and below we discuss many of the issues raised in it.⁷

Issues and Future Questions
Our data illustrate both important consequences and further questions/uncertainties about how the planned FLSA update and the subsequent injunction will affect the current postdoctoral population.
With implementation, even with 10 days to go with all institutions checked, there was still a significant lack of information about compliance with the FLSA rule for postdocs. Up until November 22, with 9 days before the FLSA rule was to take place, the majority of the postdoctoral population was poised to have salaries raised. With the injunction, the salary changes are not required to occur on December 1, and possibly not at all, raising several questions. Mainly, while some postdocs will not see a deviation from the current plan going into effect on December 1, will all postdocs be treated equally elsewhere in the country?

Prior to November 22, another issue was whether postdocs on certain grant/fellowship stipends (particularly non-NSF and non-NIH) were to be exempt from the FLSA rule. What happens to those postdocs following the injunction is uncertain.

Another potential issue with implementation was the fact that some universities were to track hours, which runs counter to academic culture. Since many job-related duties for postdocs occur during nights, weekends, and while away from the lab, how would those hours have been tracked? However, now the issue of tracking hours for postdocs is of particular concern following the injunction. Will overtime payment to which some postdocs were about to become entitled now be lost?

Bigger questions of how the research enterprise will be affected by this rule (and now injunction) also arise. Prior to November 22, possibilities included a drop in new postdoc hires, loss of some postdoc jobs, or potentially a switch to hiring staff scientists due to PIs not being able to afford to pay as many postdocs. This may have in the long run made the research enterprise more sustainable. Now that postdocs have been told they may not get raises, how will this affect the desire of postdocs to remain in the system? There is now a lot of uncertainty surrounding the salaries of a population that is already severely underpaid.⁸ We will continue to monitor how institutions respond to this injunction and are posting updates,⁸ particularly in the section “How institutional plans have/have not changed since the injunction.” At the time of writing, most institutions, and also the NIH, are continuing in their plans to raise salaries for postdocs.

References and Footnotes
¹Bankston A, McDowell GS (2016). Monitoring the compliance of the academic enterprise with the Fair Labor Standards Act [version 1). F1000 Research. https://f1000research.com/articles/5-2690/v1.
²Collin FS, Perez TE (May 18, 2016). Fair pay for postdocs: Why we support new federal overtime rules. The Huffington Post. http://huff.to/1NxuoxU.
³http://futureofresearch.org/flsa-and-postdocs.
⁴http://bit.ly/2iycGjN.
⁵http://src.bna.com/kgs.
⁶Bade R, Bresnahan J (November 20, 2016). House GOP maps out ambitious start to Trump presidency. Politico. http://politi.co/2fehVyD.
⁷http://bit.ly/2jluXOq.
⁸http://bit.ly/2iR0aKW.