DOL notice of proposed rulemaking for fluctuating workweek method issued
Thursday, November 14, 2019

DOL notice of proposed rulemaking for fluctuating workweek method issued

By Payroll and Entitlements Editorial Staff

The U.S. Department of Labor has announced a proposed rule that would revise the regulation for computing overtime compensation for salaried nonexempt employees who work hours that vary each week (fluctuating workweek) under the FLSA.

The DOL Wage and Hour Division’s November 4, 2019, announcement of the proposed rule said will clarify that bonus and premium payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method of compensation, and that supplement payments must be included in the calculation of the regular rate as appropriate under the Act.

The Department proposed a similar clarification in 2008; however, the Final Rule issued in 2011 did not adopt this proposal. Since 2011, courts have reached inconsistent holdings based on a judicially crafted distinction between certain types of bonuses that the Department has never recognized. Therefore, the Department is re-proposing substantially similar revisions to those initially proposed in 2008.

This notice of proposed rulemaking (NPRM) is available for review and public comment for 30 days. The Department’s NPRM is scheduled to be published in the Federal Register on November 5, 2019. The Department encourages interested parties to submit comments on the proposed rule. (84 FR 59,590, November 5, 2019; Dol News release, November 4, 2019.)

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