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For the first time in over 50 years, the U.S. Department of Labor (DOL) has announced a proposed rule that would substantially update the “regular rate” of pay and the “basic rate” of pay to clarify the rules and reflect the 21st-century workforce. The regular rate determines what forms of payment employers must include when calculating employees’ overtime “time and one-half” rate of pay. The basic rate is used in limited circumstances to calculate overtime pay.

Regular Rate

The DOL’s proposed rule seeks to clarify which perks provided by an employer should be excluded from an employee’s regular rate of pay. The majority of the updates clarify the exclusions that fall under three categories:

• payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work or other similar cause;
• reasonable payments for traveling expenses or other expenses incurred for the employer’s interests and properly reimbursed by the employer; and
• other similar payments that are not made as compensation for the employee’s hours of work.

Under the proposed rule, an employer will be permitted to exclude from an employee’s regular rate of pay:

• the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
• payments for unused paid leave, including paid sick leave;
• reimbursed expenses, even if they are not incurred “solely” for the employer’s benefit;
• reimbursed travel expenses not exceeding the maximum travel reimbursement permitted and meeting certain regulatory requirements;
• discretionary bonuses;
• benefit plans, including accident, unemployment and legal services; and
• tuition programs, including reimbursement programs and repayment of educational debt.

In addition to updating the regular rate of pay, the DOL proposes eliminating the standard that call-back payments must be “infrequent and sporadic” to be excludable from an employee’s regular rate. However, the DOL is continuing to require that payments under the call-back provision are excludable when they are not so regular that they are essentially prearranged.

Basic Rate

The DOL also proposes updating the basic rate regulations to similarly match the current workforce. In certain circumstances, employers are permitted to use a basic rate as an alternative to the regular rate to calculate overtime compensation. The basic rate is defined as a specified rate or method of calculation that is substantially equivalent to an employee’s straight-time average hourly earnings and has been agreed upon by the employee before he or she performs the work.

Under the current basic rate regulations, an employer may exclude additional payments from the overtime computation when the exclusions do not affect the employee’s overtime compensation by more than 50 cents per week on average for the overtime work weeks in the period that the employer makes the payment.

As an example, the DOL provided a scenario in which a non-exempt hourly employee is paid a cost-of-living bonus of $260 each calendar quarter, or $20 per week. The employee works overtime in only two weeks during the 13-week period, and in each of the overtime weeks he works 50 hours. He is therefore entitled to $2 as overtime compensation on the bonus for each week in which he worked overtime (i.e., $20 bonus divided by 50 hours equals 40 cents an hour; 10 overtime hours times one-half times 40 cents an hour equals $2 per week). Since the overtime on the bonus is more than 50 cents on average for the two overtime weeks, this cost-of-living bonus would not be excluded from the overtime computation.

Under the new proposal, the DOL would change the basic rate exclusion limit from 50 cents to 40 percent of the $7.25 federal minimum wage, or $2.90. In the example provided above, under the proposed rule the cost-of-living bonus would be an excludable payment because it would fall below the proposed limit of $2.90.

Next Steps

The DOL believes the proposed rule will lead to potential cost savings for employers, whether they use the regular rate or the basic rate. Employers should consider consulting with employment counsel to assess their pay practices and overtime calculations and determine the cost-saving areas of exclusion that may apply should the proposed rule become effective. The DOL is accepting written comments on the proposed rule until May 28, 2019 as part of its rulemaking process.

FOR MORE INFORMATION

For more information, please contact:

Bryan A. Stillwagon
404.407.3668
Bryan.Stillwagon@ThompsonHine.com

Candice S. Thomas
513.352.6508
Candice.Thomas@ThompsonHine.com

or any member of our Labor & Employment group.

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