Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360, in “DOL Greenlights Bonuses for Workers Without Set Schedules,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor unveiled a final rule on Wednesday that lets employers offer workers with "fluctuating workweeks" bonuses and hazard pay, saying the regulations free businesses up to explore new ways of paying those workers amid the ongoing pandemic. ...

The final rule largely tracks a proposed version that the DOL put out late last year that would undo a 2011 Obama-era regulation meant to block businesses from shorting workers by shifting the bulk of their base salaries into bonuses. The rule is awaiting publication in the federal register and will take effect 60 days after it is published. ...

Epstein Becker & Green PC's Paul DeCamp, a former WHD administrator, told Law360 on Wednesday that the preamble of the DOL's 2011 rule created a risk of litigation that essentially forced employers to have to choose between maintaining their use of the fluctuating workweek or continuing to pay bonuses, commissions and other types of nonsalary compensation to certain employees.

"It was one or the other but not both unless companies wanted to run the risk of facing this issue in court," DeCamp said. "Now, with the department's clarification on these issues, employers can be confident that they can provide these other types of pay, this additional money, to their salaried, nonexempt [employees] without jeopardizing the fluctuating workweek."


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