On April 5, 2011, the U.S. Department of Labor issued final regulations intended to address a number of amendments to the FLSA over the years and to update the regulations to reflect current conditions. The end result, which becomes effective May 5, 2011, will impact employers in a number of industries (such as restaurants that use the tip credit to calculate the minimum wage of tipped employees, and municipal employers that have comp time systems). The final regulations continue in place a regulation that declares that service advisers employed by automobile dealerships should be treated not as exempt but as non-exempt employees. The DOL reconfirmed this interpretation even though it has been rejected previously by several U.S. Courts of Appeals, including the Fourth Circuit (which covers Maryland, Virginia, West Virginia and the Carolinas).
Employees Paid on the Fluctuating Workweek Method
The final regulations address bonus and non-overtime premium payments for employees paid by the fluctuating workweek method. By way of background, if a non-exempt employee works fluctuating hours from week to week, the employer and employee may mutually agree to a fixed salary as “straight time” compensation “apart from overtime premiums” for whatever hours the employee is required to work in a given workweek. The fixed salary amount must be sufficient to provide compensation at not less than the minimum wage. If these conditions are met, the employer satisfies the obligation to pay overtime if it compensates the employee, in addition to the straight time pay, at least one-half of the regular rate of pay for all hours worked in excess of 40 in the workweek (rather than one-and-one half times the rate, since the straight time salary is agreed to cover all hours worked in a workweek). Because the employee’s hours fluctuate from week to week, the regular rate of pay must be determined each workweek depending on the hours worked.
The proposed regulations would have permitted employees compensated by this method to receive bonuses and other non-overtime premium payments without invalidating the pay method. However, the DOL reconsidered this position in the final regulations, siding with unions and employee-advocacy groups that argued that such payments are inconsistent with the purpose of the method: a fixed salary that does not vary from workweek to workweek. If bonuses and premium payments were permitted to supplement this pay, the DOL concluded, it “could have had the unintended effect of permitting employers to pay a greatly reduced fixed salary and shift a larger portion of employees’ compensation into bonus and premium payments potentially resulting in wide disparities in employees’ weekly pay depending on the particular hours worked.”
As a result of the final regulations, employers should ensure that employees paid by the fluctuating workweek method do not receive bonuses or incentive compensation other than premium payments for overtime. Although the rule seems punitive and perverse, failing to observe it will invalidate the pay scheme, obliging the employer to pay one-and-one half of the regular rate of pay, rather than one-half that rate.
Commuting Time and Employer-Provided Vehicles
The final regulations address a 1996 amendment to the Portal to Portal Act that provided that an employee’s normal commute to and from work does not become compensable time merely because the employee drives an employer-provided vehicle. The new regulation states, “The use of an employer’s vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered ‘principal’ activities when the following conditions are met: The use of the employer’s vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or the representative of the employee.” The DOL’s introductory comments to the revised regulations also make clear that employees may not be required to incur direct or indirect out of pocket costs related to the commute, such as for parking or gas. Although both employer and employee advocates had asked the DOL to give examples of what constitutes activities “incidental to the use of a vehicle” for commuting, the DOL declined because doing so would require it to issue a new proposed regulation for comments. It may do so in the future.
Exclusion of the Value of Stock Options From the Regular Rate of Pay Computation
The final regulations also address a 2000 amendment to the FLSA, which provided that the value or income derived from employer-issued stock options are not included in non-exempt employees’ regular rate of pay for purposes of calculating overtime. The regulations specify the conditions that must be met to exclude such amounts.
- The grant must be made under a program, the terms and conditions of which are communicated at the time the program is adopted or at the time of the grant;
- In the case of stock options or stock appreciation rights, the right cannot be exercisable for a period of at least 6 months after the time of the grant (with the exception of rights arising as a result of an employee’s death, disability, retirement, or change in ownership);
- The right to exercise must be voluntary; and
- If determinations are based on performance criteria, the criteria must be previously established or based upon past performance of one or more employees subject to certain specified guidelines.
Article courtesy of Worklaw® Network firm Shawe Rosenthal.
