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Oklahoma Federal Court Finds Expense Reimbursement Need Not Be “Rolled In” To Overtime Calculation

Fixed payments made on other than an hourly basis to non-exempt (i.e., overtime eligible) workers often must be included in the regular rate of pay for purposes of calculating overtime.  One type of payment that may be excluded from the regular rate calculation is payment for “reasonable payments for travel expenses, or other expenses, incurred … Continue Reading

Missouri Court Analyzes, Upholds Employer’s Use Of Fluctuating Workweek Method Of Overtime Payment

One method of computing overtime payments under the FLSA is the “fluctuating workweek” method. The Department of Labor’s interpretive bulletin, 29 C.F.R. § 778.114, sets forth this example of determining the regular rate of pay when an employee is paid a salary for all hours worked in a workweek, whether few or many. Because the … Continue Reading

New York Federal Court Upholds Payment of Overtime Pursuant to Fluctuating Workweek Method Notwithstanding Bonus Pay

Uncertainty and litigation have ensued in the wake of the Department of Labor’s May 5, 2011 Final Rule regarding application of the fluctuating workweek method of overtime compensation (FWW) authorized by 29 CFR § 778.114, specifically the Rule’s commentary on the payment of incentive compensation to employees compensated via FWW.  In a thorough recent decision, … Continue Reading

Georgia Judge Rejects Novel Assertion of Section 1981 Discrimination Claim Based on Failure to Pay Immigration Visa Rate to US Workers

"As the season for sweet onions ends, another onion farm labor dispute begins," observes Judge B. Avant Edenfield of the Southern District of Georgia in a new opinion, commenting upon the flurry of FLSA lawsuits filed in recent years in the American Southeast arising out of labor conditions at large farming concerns utilizing immigrant workers. Judge … Continue Reading

SDNY Judge Oetken Upholds Payment Of Overtime Pursuant To Fluctuating Workweek Method

The technical requirements for paying overtime pursuant to the fluctuating workweek method set forth in 29 C.F.R. § 778.114, can be confusing. The regulation, for example, discusses an employee and employer having a clear mutual understanding that overtime will be paid pursuant to the fluctuating workweek (FWW) method. In a new decision analyzing the FWW method, Judge … Continue Reading

U.S. House of Representatives Approves Compensatory Time Bill Along Party Lines

Developing political momentum for the first time in several years, the Republican-sponsored Working Families Flexibility Act or comp time bill – which would permit private sector employers to pay premium overtime via compensatory time off rather than in cash if certain conditions are met – received another boost yesterday, with a House vote passing the … Continue Reading

Eleventh Circuit Addresses Undocumented Workers Right to Unpaid Wages Under FLSA and Calculation of Overtime Owed to Salaried Workers

The Eleventh Circuit has found that an individual who is not authorized to work in the United States can recover alleged unpaid wages under the FLSA, rejecting an employer’s argument that Supreme Court’s decision in Quality Inn in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), bars such claims. In so holding, the … Continue Reading

District Court Finds Clear Mutual Understanding Necessary to Uphold Fluctuating Workweek Compensation Plan

The requirements of paying overtime to a non-exempt employee pursuant to the fluctuating workweek method are generally straightforward and set forth in 29 C.F.R. 778.114:  (1) the employee’s hours must fluctuate from week to week; (2) the employee must receive a fixed salary that is sufficient to provide compensation at a regular rate that is … Continue Reading

EDNY Judge Rules Suggested Gratuity Did Not Factor Into Overtime Calculation and Upholds Validity of Auto-Deduct For Meal Periods

As discussed repeatedly in these pages and elsewhere, employers have faced innumerable lawsuits regarding their alleged failure to distribute amounts purported to be gratuities to service staff in their entirety. However, even distributing tip money dollar-for-dollar to service providers is not a panacea against wage claims, as highlighted in a new opinion issuing from the Eastern … Continue Reading

Seventh Circuit Upholds Pro-Employer Method of Overtime Calculation for Misclassified Employees

The Fair Labor Standards Act requires employers to pay non-exempt employees one and one half times their regular rate of pay for any hours worked in a workweek in excess of 40. United States Department of Labor regulations, as set forth in 29 C.F.R. § 778.114(a), allow an employer to utilize the fluctuating workweek (“FWW”) method … Continue Reading

The Pitfalls Of Excluding Payments from the Calculation Of The Regular Rate Of Pay

In general, when calculating the regular rate of pay for purposes of determining overtime under the FLSA, all remuneration must be included.  This rule is subject to certain limited exceptions for, inter alia, discretionary bonuses and reimbursement of legitimate expenses.  But, if an employer decides to provide an hourly “per diem” and classify it as … Continue Reading
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