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 Looks to Beat Congress’ Review Clock with 3 New Rules,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor finalized regulations last week covering pay and overtime issues and the labor secretary’s power to review administrative decisions, looking to lock in key rules before they become fair game for the next Congress to rescind.

Putting a significant dent in its regulatory backlog, the DOL finalized three notable rules that expand how certain employers can qualify as “retail” businesses to fall under an exemption to the Fair Labor Standards Act, let employers offer bonuses and hazard pay to workers with "fluctuating workweeks,” and expand the secretary of labor’s authority to review rulings by two legal panels that hear administrative appeals.

Those rules come just months ahead of an election in which the presidency and control of Congress will be up for grabs, leaving agencies like the DOL racing to finalize new rules so that they take effect before a potential new administration can shift course or a newly constituted Congress can step in. Under the Congressional Review Act, lawmakers can overturn regulations within 60 legislative days of when they are issued. …

Door Opened for More ‘Fluctuating Workweek’ Usage

The DOL on May 20 put out its final rule updating the agency’s regulatory framework for how overtime is calculated under the FLSA for salaried workers with “fluctuating workweeks” who aren’t exempt from overtime.

The rule expressly allows employers to give those workers incentive-based payments like bonuses, hazard pay and commissions on top of the fixed weekly salaries those workers already receive, with the DOL saying that such payments “are compatible” with the fluctuating workweek overtime calculation method. It also says that employers must include those added payments in the calculation of a worker’s so-called regular rate of pay as required by the FLSA.

The fluctuating workweek formula lets businesses pay overtime hours at diminishing rates to workers whose hours fluctuate from week to week as long as the workers are paid a fixed salary as straight-time compensation for all the hours they work. The method makes employers pay out overtime hours at half of a worker’s “regular rate,” the base wages that employers use to compute overtime.

Paul DeCamp, a former DOL Wage and Hour Division administrator who now co-heads Epstein Becker Green’s wage practice, said the rule offers “a clear statement that bonuses and other types of nonsalary compensation are just fine with regard to the fluctuating workweek.”

“I think that as a result of this new final rule, we will see some employers adopt the fluctuating workweek where they have not used it before,” DeCamp said. “But the greater effect will be seeing employees who are already on a fluctuating workweek now finding themselves receiving bonuses and other types of compensation. I think that will affect more workers than having people newly added to the fluctuating workweek.”


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