Paul DeCamp Quoted in "DOL's New Fluctuating Workweek Rule May Pave Road for Worker Bonuses"

Paul DeCamp, an attorney with the law firm Epstein Becker Green’s labor and workforce management practice, says the DOL rule clears up ambiguity surrounding when employers can use the fluctuating workweek rule. A preamble in a 2011 Obama-era regulation suggested that bonuses were contrary to a flexible workweek, DeCamp says.

“The department’s past rulemakings have created ambiguity — paying employees a bonus makes the fluctuating workweek calculation unavailable,” DeCamp says. “During the last administration some people with DOL took the position that the fluctuating workweek was only available when the compensation the employee received was in the form of salary.”

This new update may make it easier for employers to pay out bonuses or other kinds of compensation to a specific group of workers. Labor Secretary Eugene Scalia says the proposal will remove burdens on American workers and make it easier for them to get extra pay.

“At a time when there are more job openings than job seekers, this proposal would allow America’s workers to reap even more benefits from the competitive labor market,” Scalia says.

DeCamp adds that the update will make it easier for employers to provide bonuses to these workers, without being concerned they are going to impact their overtime calculation.

“What this does is it makes it possible for employers who have salaried non-exempt employees to pay other types of compensation too — without worrying that in paying that bonus or other type of compensation they’re going to screw up their overtime calculation,” DeCamp says.

But DeCamp warns that employers should not confuse this regulation with the overtime rule that the DOL finalized in September, which raised the minimum salary threshold for overtime eligibility to $35,568 per year.

“These two regulations are not interlocking. They don’t really deal with the same subject,” he says. “They’re both talking about very different employee groups.”