Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in the Bloomberg Law Daily Labor Report, in “First Responder Overtime Virus Pay at Risk Under DOL Rule: Union,” by Ian Kullgren.

Following is an excerpt:

A Labor Department rule on fluctuating schedules set to take effect in July could cut overtime pay for first responders in the middle of the Covid-19 pandemic, according to a national union that represents firefighters and emergency medical technicians.

The rule makes it easier for employers to use the fluctuating workweek method of calculating pay under the Fair Labor Standards Act. Those who support the change say it shields employers from lawsuits when they give bonuses to workers. The union and public-sector worker advocates say it could lead to pay cuts and excessive overtime shifts for firefighters and EMTs because those who work the most overtime could end up earning significantly less. …

Other Extra Compensation

Management attorneys say the rule would protect employers from wage lawsuits for giving bonuses to workers. Previously, businesses that used the fluctuating workweek method were advised not to include bonuses in the regular rate calculation, forcing some to choose between using the fluctuating workweek option and giving employees incentive pay to boost wages.

Under the new rule, businesses may include other forms of compensation in the regular rate equation before cutting that rate in half to calculate overtime.

“There’s no reason to believe that employee pay is going to decline as a result of this rule in the aggregate,” said Paul DeCamp, the DOL Wage and Hour administrator during the George W. Bush administration who’s now an attorney at Epstein Becker Green. “Instead, this rule if anything makes it easier for companies to provide fluctuating workweek employees with extra compensation in the form of bonuses, shift premiums, and other additional money.”


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