Employer Law Report

Tag Archives: Fair Labor Standards Act

DOL issues final rule clarifying the regular rate of pay

The U.S. Department of Labor (DOL) is making significant changes to the regulations covering the regular rate of pay under the Fair Labor Standards Act (FLSA) for the first time in more than 50 years. The FLSA entitles most covered, nonexempt employees to receive overtime pay of at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek.

Definition of “Regular Rate”

Under the FLSA, “regular rate” includes all remuneration for employment paid to the employee, but excludes the following eight categories of payments:

  • Gifts and payments for special occasions

FLSA Hot Topic: The Fluctuating Workweek and Commission Pay

We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.

The fluctuating workweek method is permitted by FLSA regulation 29 C.F.R. § 778.114, promulgated by the Department of Labor to implement the Supreme Court’s holding in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 …

Court Finds That Immigrant Workers’ Transportation and Visa Expenses Must Be Taken Into Account For Minimum Wage Purposes

A recent wage-and-hour case illustrates the effect payroll deductions can have on minimum wage compliance. In Rivera v. Brickman Group, Ltd., No. 05-1518 (E.D. Pa. Jan. 7, 2008), a company brought Guatemalan and Mexican workers to the United States for seasonal employment under H-2B visas. Although the workers were paid amounts that appeared to be above the minimum wage, the company failed to take into account certain travel expenses and other employment-related costs incurred by the workers – expenses that reduced the workers’ earnings below minimum wage levels.

In particular, the court found that transportation expenses, costs involved in obtaining visas, …

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