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The Fair Labor Standards Act (FLSA) is the law that contains overtime pay provisions for employees across the United States, entitling all US workers to overtime pay unless they are exempted because they are paid on fixed, preset salaries; are engaged in executive, administrative, or professional duties; and are paid at least $23,660 per year. Today, a historic change to this act has occurred – under the new rule, the overtime pay threshold will be increased to $47,476, effective December 1, 2016.
Understandably, many members of the community have reached out to us with questions about how this rule will affect post-doctoral researchers, who are critical players in the biomedical research enterprise. During the FLSA revision public comment period, many universities and professional organizations provided feedback to the Department of Labor. Likewise, NIH communicated with the Department of Labor to echo the importance of supporting and acknowledging the significant contributions of postdoctoral researchers to NIH-supported research. In recent years we made increases to NRSA stipends as a result of analysis and recommendations stemming from the Advisory Committee to the Director biomedical workforce working group. Stakeholders ranging from academic faculty to scientific professional societies have recommended further increases post-doctoral compensation, and early-career researchers have likewise been vocal about the types of challenges postdocs face in the current research ecosystem. We acknowledge that more is needed to support the scientific leaders of tomorrow.
As described in a Huffington Post Op-Ed by NIH Director Francis Collins and U.S. Secretary of Labor Thomas E. Perez, NIH is fully supportive of the increased salary threshold for postdocs. In response to the proposed FLSA revisions, NIH will increase postdoctoral NRSA stipends to levels at or above the new threshold. Institutions that employ postdocs through non-NRSA support can choose how to follow the new rule. They may choose to carefully track their postdocs’ hours and pay overtime. Or, keeping with the fact that biomedical research – as in many professional and scientific careers – does not fit into neatly defined hourly shifts, institutions can choose to raise salaries to the new FLSA salary threshold or above it, if they do not yet pay postdocs at or above that level.
We’ll be working closely with leaders in the scientific community to aid in a smooth transition. Given the current challenging funding situation, we recognize that increased salaries will impact other financial and staffing operations at grantee institutions. Stay tuned for more information and guidance for institutions and postdoctoral researchers through the NIH Guide, and the Extramural Nexus and Open Mike blog, in the months ahead.
Hi Mike,
Thanks for this explanation. Does the FLSA overtime rule apply to postdocs in the U.S. on temporary visas, or just citizens and permanent residents?
According to the Department of Labor, where the FLSA applies it covers all workers, regardless of visa status.
yes, but if not mistaken, the essence of the question may be whether international postdocs on J1 exchange visas are even considered “workers” under these rules? or they are “trainees” expected to return to their home countries. when I was an international postdoc at NIH, I remember NIH worked very diligently to explain us that in no way we are workers-employees (or government employees), we are trainees. so if you are not a “worker”, you do not “work” and you cannot overtime?
“Other operations”?
It’s coming from the RPGs. You know this.
Thank you for the explanation! Will the NIH act on behalf of current post-doctoral trainees sponsored by NRSA training programs to adjust salaries come December 1st, or will they have to wait until their contracted year is up to receive a salary adjustment? My understanding of the current system is that salaries are set per annum and are not eligible for adjustments during the awarded term.
As an F32 recipient in a high cost of living area, I would like to know the answer to this as well, especially since I will begin year two before Dec. 1.
Ditto. I can barely afford to live off my stipend in my “top 3 most expensive US city” and can do so only through the salary of my non-postdoc husband.
I understand that the implementation will require time to figure out, but I’m a little concerned as to why the announcement was made before it could be implemented? This gives the impression that the NIH wanted to appear as if they are addressing the issue, without actually addressing the issue. There are thousands of postdocs who will be affected–positively!–by this change but when? We need the $ now. Costs have increased substantially, and at my university I have to front all research-related costs which adds to the problem.
Thanks all for your questions so far. We need some time to develop implementation plans before we can provide answers to these questions. We encourage you and others to keep the questions coming, as they will help us during the upcoming months as we think through all the relevant details in implementing the new rule.
I’m glad that NIH chose to meet the new minimum rather than require employers to enforce more strict working hours. As the 2016 NIH minimum for NRSA awardees is $43,692, does this mean that the first three years now become the new minimum of $47,476, and the rest of the salary schedule remains at the 2016 levels? Or will everything be raised across the board by $3784? I’m anxious to see what the FY2017 salary schedule will look like.
How would the new rules affect postdocs that are working part-time, as several do for very legitimate reasons (as opposed to employers not wanting to pay them full salary and lowering FTE but still expecting them to work full time)?
Hi Dany, have you learned anything new about the effects of this rule on part-time postdocs? If so, can you please share this with me? Thanks!
The FLSA does not distinguish between part-time and full-time employment. When the overtime rule goes into effect, part-time postdoctoral researchers could be eligible for overtime pay if they earn less than $913 per week in which work is performed and work more than 40 hours in that week. NIH plans to post additional questions and answers to the research training website soon.
How will this affect NRSA postdoctoral awardees? Will the individual funding institute suas NCI, NHLBI etc. automatically adjust their awardee stipend starting December 1st?
I’m all for fair compensation for postdocs, and currently pay mine over the threshold rate, but this policy raises big issues that I hope NIH is considering:
1) R01 budgets typically follow a modular format and postdoc salaries are set. There’s very little room to rebudget, particularly during a grant year, without the science suffering – should NIH do away with modular formats, or raise the module limit?
2) NRSA fellows will have a career advantage over postdocs at institutions that choose to limit working hours rather than pay overtime. If you’re fortunate to be over the threshold you can work as long as you need to – but if the institution limits work to 40 hours with strictures against overtime, this could have the effect of handicapping a group of postdocs supported by RPGs;
3) There will be pressure to redefine duties for postdocs to exclude things that are not essential to the execution of the aims of funded grants – discretionary time is already under pressure for needed professional development opportunities. The policy will exacerbate this for institutions that choose to limit postdoc to 40hr weeks – again disadvantaging a trainee supported by a RPG;
4) The limit is uneven in its benefit, not accounting for differences in cost of living across the country;
5) Related to (1), awards are typically being cut on non-competing renewals as much as 10-20% – this policy provides additional pressure on already strapped grants. Will this practice stop to allow more budget flexibility in light of this change?
6) Will NIH be monitoring the effect of this when (almost inevitably) there is a spike in postdoc unemployment as PIs shift funding to less expensive graduate students and technicians? Seems as though this will exacerbate the problem by shifting resources to increase the input into the pipeline while at the same time creating a situation that promotes firing of more expensive personnel.
I’m looking forward to see specific implementation guidelines. I foresee some troubling outcomes and look forward to receiving more guidance.
Technicians will be living under the same rules as post-docs won’t they? Either pay them overtime or up their salary? Why would post-docs get replaced by technicians?
I’ve always made sure that my technical staff works within the 40 hour per week guideline, and, for example, if they have to stay late that they take a half day some time to make it up. Technicians are not trainees and don’t have the future employment upside that a postdoc at least aspires to.
Base rate of pay is lower for RA’s, so overtime can fit better. The same general mechanism of coping has been mentioned for other businesses. More broadly, the application of this labor rule for workers to people who only should be in the position as trainees seeking to develop a capacity for independent scholarship and to lead or manage scientific inquiry (most of the time, experimental science) is basically the fruit of years of lobbying by post-doc associations, etc. Whether it will be poisoned fruit for the enterprise and the future of science will be interesting. Another post alluded to the fact that a huge percentage of positions are NOT NRSA funded (don’t have stats handy – NRSA are probably well under 50%), and grant budgets probably aren’t going to go up. If they do, there will be less grants. [To the extent Congress increased NIH appropriation, very little of that increase went into the non-targeted R01 pool.]
Basically, a 12% increase in the de facto entry-level gamble that PI’s make in taking a fresh-from-PhD postdoc means there will be about 10% less positions, and the demands and expectations for renewal will probably go up. So, have fun, y’all !
Of course, maybe this is what NIH means about “reducing competition” – there will be that much smaller a cohort of folks vying for faculty positions.
I don’t have to worry about the fact that I’m limiting a technician’s future job prospects if I limit them to 40 hour work weeks. I can hire and fire technicians with greater assurance that they will be able to move laterally within the organization. I can share a technician and generate a greater salary by pooling resources with another faculty member – doing that for a postdoc is nearly impossible. And that’s just off the top of my head.
One way to solve this problem is to exclude seminars, classes and other training activities from the 40 hours.
I think that’s correct. Professional development will need to be on their own time, unfortunately, if their effort is on a R01. T32 or NRSA fellows would still retain that.
A postdoc employee must also be considered a trainee (see previous post about this from the Rock Blog: https://nexus.od.nih.gov/all/2014/10/10/defining-the-dual-role-of-graduate-students-and-postdocs-supported-by-research-grants/ ). As part of their training it is expected that they are engaged in career development activities. If you want to eliminate that, then they should not be appointed as a postdoc but instead as a staff scientist, which will likely cost you a lot more than a postdoc would.
Trying to find out what this means for T32 fellowships? Will NIH increase those stipends also?
And whether federal funds will be allowable for supplementing T32 stipends if the training grant amounts are not increased?
You’ll likely ned to cut a slot or terminate a slot early to make up the difference. Sad.
The NIH will be increasing the NRSA levels to above the new threshold, which will mean that postdocs on T32s will be paid a stipend at or above the new threshold and no supplement would be needed from the training grant’s host institution for this increase. Additionally, at many Universities, postdoc fellows and postdocs on training grants are not considered employees and are thus not subject to the new FLSA regulation.
If you are already using your budget at current salary levels at 100% and in an institution that will not provide supplementation, where is this money supposed to come from? Why is NIH supporting a mechanism that is not viable for most extramural investigators? Not everyone has an T32, in fact most postdocs do not. How about postdocs on Visa.Are you saying that you need two grants to maintain your current staff?
They are saying – “reduce the number of postdocs”. They couldn’t convince universities to stop enrolling PhD students so they decided to kill it on the back end.
The salaries for personnel have increased a lot over the past decade, yet NIH R01 grants have remained level and the % of funded grants has dropped. How does the NIH imagine labs can be productive? If one assumes a granted funded with $200,000 or $250,000 direct costs, then $47,000 salary plus benefits (say 20%) means more than $56,000 per postdoc. Yet we all know i) that postdocs need more than 3 years to finish and therefore labs must support them, and ii) that if we submit a grant proposal covering the work of four people, the grant would likely fail. Study sections expect more work for the money. One answer is to initiate a program of small grants for people within labs – permanent people, who can apply for their salary, benefits and supplies. Otherwise, the slow tightening of NIH funds is going to strangle biomedical science in America for the vast majority of scientists.
Does the NIH intend to raise the cutoff on modular budgets for R01 or the budget limit on R21? With such salary hikes, the budget on R21 becomes incongruent with the expected scope. Are there any plans to augment existing awards? Otherwise, some personnel might have to be let go to allow salary increase to those who stay. Thanks.
While this is wonderful for post-docs, what about the fact that R01 monies awarded is often cut by at least 10% – if you are fortunate to obtain funding. The math does not add up. If you add 47k plus fringe benefits plus animal costs plus reagents plus salary support to the PI plus possible technician and publication costs and conferences and memberships and expenses for imaging – you are way over the modular budget.
I disagree with your first line. It’s not wonderful for postdocs. It is wonderful for some postdocs, and a disaster for others, who will lose their jobs or be limited to 40 hrs work per week.
I think this law would apply to those doing work that is focused on benefiting the employee. Post-docs are trainees and go to seminars, often are allowed to do some of their own research components, etc that fall under training. Is it clear that post-docs would totally fall under this law as employees? If so, could activities not directly related to their “job” duties not be counted as “hours?”
I think you are missing the main ramification of the new regulation. Virtually all universities will not want the burden of trying to regulate postdoc hours and deal with the uncertain financial implications of paying them overtime. Instead, universities will raise postdoc salaries to the new FLSA threshold so that they can remain exempt employees. Most universities pay postdocs at the NIH NRSA minimum level of $43K per year, so basically many postdocs will see their salary increase by about 10% to $47K per year to be above the new threshold, while some postdocs, my guess is around 5% will be laid off. Those laid off were likely underperforming to begin with and the new regulation will simply provide a nice excuse for the PI to end their appointment.
Obviously, everybody in the lab can’t get a raise on a fixed budget. The ones who are productive enough to be paid $47,500 will get the raise, and the ones who are not will lose their jobs.
Doubling the threshold all at once instead of stepping it up more gradually is incredibly disruptive and let’s face it, a sophomoric unprofessional way of managing regulations. If the old threshold was really so unjust, why did it take 7 years to change it? Is it a coincidence that this is happening right around an election? It is painfully obvious how much contempt the regulators have for the regulated.
It is fair that the rules of FLSA apply to the new grants, where higher salaries will be budgeted. However, the essential question is how to pay for the increased salaries using the existing grants, where the budgets were made before FLSA. Most of NIH grants have been administratively cut and VA or DoD grants are capped. For example my renewed NIH grant was administratively cut by approximately 27K. After subtracting my personal and key-personnel effort, I have approximately 130K left for research, of which approximately 100K is budgeted for personnel. That allows me to have two people working on the grant. If their salaries are to be raised to 47K plus benefits at 37.6% (17.6K) = 64K, I will have no money to do the research or I will need to let one person go. This clearly is not the idea of FLSA. Our institution does not seem to have money to absorb that challenge. Can NIH give us back the administrative cuts? While there are many positive things about FLSA, it looks to me that the basic biomedical research will be a collateral damage.
Sounds like this new rule was not thought-out before mandating it. Just like a lot of similar government mandates recently. If “they” ever ran a business they would know “salary” means not punching a clock. It means getting the job done for an agreed upon sum of money, no matter the time it takes to do it. The results of this rule will be less being done for the same or more money and, no more salaried employees. Good time to invest in time clocks.
Seems like there are several options:
1) Raise the salaries, if you can;
2) If you can’t:
a) Raise the salary anyway but reduce the term of current postdocs by the time necessary to offset the raise;
b) Don’t raise salaries but strictly limit work hours to 40. Make it clear and in writing that the postdoc is not to exceed those hours. Make it clear that seminars, teaching and other professional development activities are off the clock. Get your HR folks involved now and suggest that postdocs now clock in;
c) Raise salaries, but calculate the number of person months expended by raising salaries and terminate appointments earlier by that much.
d) If you have a T32, use on slot to raise salaries across the trainee cohort. Make that slot a less than one year slot and use the residuals to raise salaries to the threshold.
I think this is going to result in a lot of miserable people and overhead trying to balance it. Thank you for another unfunded mandate 🙁
I’m very curious as to why this law applies to basic science postdoctoral trainees, but NOT to medical residents and fellows (MD trainees)? The former are in positions that are just as much educational and training positions as are the latter. Why are MD trainees given an exception but not PhD trainees?
The exemption for medical residents is a long-standing Department of Labor policy. Please visit the Department of Labor website for more information.
Besides the concerns raised in earlier replies (unfunded mandate, likelihood of increased layoffs of postdocs etc), I am worried that this new salary law would disproportionately affect foreign postdocs which comprise ~50% of the current postdoc population. Any PI will think twice before hiring a freshly minted PhD for a mandated salary of 48K, with no hope of relieve in form of NRSA awards for which postdocs with temporary visas are not eligible. This will almost certainly lead to a decrease in foreign postdoc hires and reduce their influx to the US. Now, some populist corners might say that this is not that bad: after all, we have too many postdocs of which only a meager 15% go on to tenure-track positions. Let China take care of their own! Really? Prevent other countries from donating to us their best-trained workforce, in which they invested a lot of resources, education and training? One cannot overemphasize the benefit that an abundant influx of highly trained postdocs represents for the US. Other countries (I myself have only first hand experience with German efforts) have taskforces to identify ways to lure postdocs back to their countries. This illustrates a fact that is unrecognized by many Americans: one of the biggest assets of the US research system, and the society at large, is that it can so easily skim the best people from other countries. This is a significant competitive advantage, which is squandered away in recent years with a decline in US science funding. This latest unfunded salary mandate will accelerate this trend. One way to balance this unfunded mandate would be to increase the funds for individual NRSA awards dramatically, and to open them up for foreign postdocs. Now this might have to be approved by the Congress, and oh well, I better stop here…
Will the Graduate student compensation “cap” for stipend, tuition and fees remain at the Postdoc NRSA 0 level when the pay rate is increased to the new overtime threshold?
While I’m in support of post-docs, there are many unintended consequences of this mandate, many of which are described above. Another issue that is puzzling involves the actual language of the law. The language indicates that post-docs are persons who are “employed” by the institution to perform research. Yet trainees on NIH NRSA funding are not considered employees and must be appointed in a non-employee status. What implications does this have for implementation of the work hour restriction, or am I missing something? Are NRSA trainees considered NIH employees rather than university employees? As others have said, does career development/ reading papers/grant writing count as hours worked?
When does the NIH anticipate releasing the revised NRSA stipend levels resulting from the new FLSA regulations?
A new NIH Guide notice is available now – NIH staff will post related resources, and we will follow up with a blog post soon.
Is there a typo in NOT-OD-16-131?
It says “to be effective December 1, 2017” — shouldn’t this be December 1, 2016?
Yes. The Guide Notice has been reissued as NOT-OD-134 to correct this error.
Does this increase in salary apply also to T32 postdocs whose contract started before December 1st 2016?
This NIH Guide notice has been reissued as NOT-OD-16-134 to correct an error regarding the projected implementation date.
As Advocacy Chair of Tufts Postdoc Association and involved in the Boston PDA Advocacy committee, I would like to understand how this ruling will affect international postdocs who get a stipend from their country of origin (often even being paid on a home country account). Are these PD’s included in the new regulations? Or are they not regarded as employees with an institute?
In the current situation I know that it’s up to the institute’s or PI’s own discretion to supplement any gap. So in other words, will it become mandatory under the new FLSA regulations
According to the Department of Labor, where the FLSA applies it covers all workers, regardless of visa status.
Thank you for your reply. So it’s your understanding that where the FLSA applies that institutes need to supplement a gap between what such PD’s working in an US institute get paid abroad in a foreign currency and the new threshold?
I am sorry if this was already asked….
Since F32 and T32 trainees are not considered employees of their University – they are provided a stipend – does the FLSA rule not apply to them?
NIH plans that the Fiscal Year (FY) 2017 NRSA stipends for postdoctoral trainees and fellows will exceed the level of the threshold that is exempt from paid overtime. A Guide notice (NOT-OD-16-134), describing projected FY 2017 stipends was released on August 10, 2016. As indicated in the Guide Notice, the exact stipends and actual date of implementation are subject to availability of FY 2017 appropriations.
That does not answer the immediate question. Because the rule takes effect on Dec 1, 2016, there will still be NRSA Postdocs “in the pipeline” being paid with FY16 funds that are being paid below the overtime threshold. What we need to know is if the institution is obligated to bump up their stipends to the overtime threshold using internal funding as of Dec 1, 2016, since they are technically not institutional employees.
What about postdoc working under other titles? I am a postdoc but my working title is “research associate”, basically I perform postdoc level work but on the paper I am a staff of the department. My university tries to avoid legal issues for the overtime so now it required a minimum pay for all the postdocs regardless of which department you are working in. So even I am paid way below the new minimum wage now, I am not eligible to get the raise because I don’t have a postdoc “title” anymore. And now I am asked to not work more than 40 hours a week. How this can be more effective for our research?
Please check Future of Research they have a ton of resources and explanations on the FLSA.
In short (from that website):
“All postdocs working in the U.S. who are not in a primarily teaching role, come under this ruling, regardless of visa or fellowship status (and job title). Therefore institutions who do not currently pay their postdocs above this threshold will either have to choose to track the hours of a postdoc, or to raise salaries to the new threshold.”
So your institute will have to track your hours if they are not raising your salary. They have to track it since the burden of proof that you don’t work more than 40 hrs lies with your institute. Merely asking you to work less does not suffice. Work includes also stuff that you do at home, like reading emails from your boss, reading papers, searching for grants. If they cannot proof that you work less than 40 hrs then your institute may be violating federal law!
Please contact the Future of Research since they would like to know of your situation, and how they can help you.
breaking news that the FLSA overtime rule has been blocked. How will NIH respond? Will they go ahead with the postdoc salary increases?
Please see the most recent blog post and comment from NIH on plans for NRSA stipends.