Warehouse Worker

DOL Says Some Perks and Benefits Are Not Pay

Dec. 18, 2019
Calculation is needed when figuring overtime compensation.

Employers will find it easier to offer their workers various benefits and perks under federal wages laws because of a new rule issued by the U.S. Department of Labor (DOL).

Effective Jan. 15, 2020, the rule was proposed this year to adopt the first significant update in 50 years of the regular rate requirements imposed under the Fair Labor Standards Act (FLSA) regarding overtime. These rules define the specific forms of payment that employers can include and exclude in the FLSA’s overtime payment “time and one-half” calculations.

“The previous regulatory landscape left employers uncertain about the role that perks and benefits play when calculating the regular rate of pay,” DOL explains. “The new rule clarifies which perks and benefits must be included in the regular rate of pay, as well as which perks and benefits an employer may provide without including them in the regular rate of pay.”

 The regulations have been clarified by DOL to confirm that employers may exclude from an employee’s regular rate of pay:

  • The cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program) and adoption assistance.
  •  Payments for unused paid leave, including paid sick leave or paid time off.
  •  Payments of certain penalties required under state and local scheduling laws.
  •  Reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit. and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the federal travel regulation system or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments.”
  •   Certain sign-on bonuses and certain longevity bonuses.
  •  The cost of office coffee and snacks given to employees as gifts.
  •   Discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is
  •   Discretionary and providing additional examples.
  •   Contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.

 The final rule also spells out that the label placed on a bonus does not determine whether or not it is discretionary and provides fact-based examples of discretionary bonuses that may be excluded from an employee’s regular rate of pay under the FLSA. The department issued both a Fact Sheet and HIghlights explaining its revised interpretation.  

In addition, DOL makes two substantive changes to the existing regulations. First, it has eliminated the restriction that “call-back” pay and other payments similar to call-back pay must be “infrequent and sporadic” to be excludable from an employee’s regular rate while maintaining that such payments must not be prearranged.

Secondly, the department has updated its regulations pertaining to the “basic rate,” which is authorized under FLSA as an alternative to the regular rate under specific circumstances.

Under the final rule, employers using an authorized basic rate may exclude from the overtime computation any additional payment that would not increase total overtime compensation by more than 40% of the higher of the applicable local, state or federal minimum wage a week on average for the overtime workweeks in which the employer makes the payment.

 “The final rule provides examples of the types of bonuses that can be excluded as discretionary, but this determination remains very fact-specific and the standard for excluding a bonus from the regular rate remains high, note attorneys Leslie Selig Byrd and Amber K. Dodds of the Bracewell LLP law firm.

“Also, the rule provides that ‘certain’ sign-on and longevity retention bonuses may be excluded; again, employers should be thoughtful when determining whether the bonuses they provide in these circumstances may properly be excluded from the regular rate,” they add.

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