The “salary basis” test is by far the most straightforward component of the white collar overtime exemptions, requiring only a fixed salary of $455/week (subject to state law) paid in compliance with the requirements of 29 CFR § 541.602. However, an employer’s use of an unusual compensation or bonus structure can still result in allegations that this requirement is not met. Such claims can arise even when the weekly payment in question far exceeds the minimum salary requirement. This was the nature of the Plaintiffs’ unsuccessful attempt to assert that the employer failed to satisfy the salary basis requirement in Bell v. Callaway, 2010 U.S. App. LEXIS 17981 (11th Cir. Aug. 26, 2010).[1]

In Callaway, the employer hired approximately 100 “bookkeeper/accountants” to assist Callaway in the restatement of a single company’s books (HealthSouth). Their compensation arrangement is summarized below:


Plaintiffs received a guaranteed weekly salary of $1600 or more that did not depend  on the quality or quantity of the work performed. This weekly salary was reduced by one-fifth of the weekly salary for every full day a Plaintiff took off from work for personal reasons during the normal workweek without substituting Paid Time Off ("PTO") [Ed.: a lawful deduction under 541.602]. But, a Plaintiff could work fewer than eight hours during any given workday without any reduction in his or her weekly salary. Second, Plaintiffs were eligible to receive additional incentive compensation (a "bonus") paid at a straight-time hourly rate based on the cumulative number of billable hours that Plaintiffs worked. Any bonus to be awarded was determined based on how many additional hours over forty a Plaintiff worked in a given week minus any "deficit" hours a Plaintiff had accumulated in past weeks. For example, if a Plaintiff worked seven and not eight hours on each regularly-scheduled workday in a given week, thus totaling 35 hours of work, he or she still earned the full predetermined weekly salary, but would not earn a bonus in a subsequent week until he or she made up the bonus-hour deficit of five hours and then worked more than 40 hours in a given week.


Id. at * 1-2. 


The Eleventh Circuit, affirming the district court, rejected Plaintiffs’ claim that they were “not paid on a salary basis because the amount of their bonuses fluctuated based on the cumulative number of hours worked.” Id. at * 4. The Court noted the DOL’s regulation which allows an employer to “provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis.” Id. at * 5 citing 29 C.F.R. § 541.604(a). Because the salary basis was met, exempt status was preserved, and the additional compensation was of no moment. The fact that the bonus was based on hours worked and subject to adjustment based on hours worked was irrelevant to the court’s analysis of salary basis compliance.


While Callaway is in line with other Circuit decisions addressing similar plans (See e.g. Havey v. Homebound Mortg., Inc., 547 F.3d 158 (2d Cir. 2008)(the fact that [plaintiff’s] overall compensation for quarter could be decreased due to quality errors does not render [plaintiff] a non-salaried employee if, under the employer’s policy, the adjustments do not affect a "predetermined amount" [compliant with the salary basis test]), employers devising exempt compensation plans must beware of compensation arrangements that could result in assertions that rather than applying a proper FLSA exemption, they are attempting to circumvent the Act’s overtime requirement. See generallyAdams v. Department of Juvenile Justice, 143 F.3d 61 (2d Cir. 1998).


This decision points out the need for all employers to ensure that compensation programs for white collar-exempt employees are in full compliance with the salary basis requirements of the FLSA. 

[1] Jackson Lewis partner Todd Van Dyke of the Firm’s Atlanta office represented the Defendants in Callaway.