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Proposed New Overtime Rule Would Affect Fluctuating Workweek Employees

Today, the U.S. Department of Labor (DOL) published yet another new proposed rule regarding employee compensation. The DOL’s latest rule deals with the little-used and oft-misunderstood “fluctuating workweek method” of employee compensation. The DOL’s proposed fluctuating workweek rule seeks to clarify the permissibility of employers paying bonuses and other premium compensation to employees who are paid on a fluctuating workweek basis.

Under the Fair Labor Standards Act (FLSA), assuming certain conditions exist, employers may pay a fixed salary to non-exempt employees whose hours fluctuate each workweek. This is provided, of course, that the employee’s fixed salary exceeds the minimum wage for workweeks during which the employee works the greatest number of hours. Among other important conditions, the employer and employee must have a clear and mutual understanding that the fixed salary is intended to compensate the employee for all hours worked during any workweek, regardless of the total number of hours actually worked, “whether few or many.” Employees compensated under the fluctuating workweek method must also be paid the overtime premium for all hours worked in excess of 40.

The preamble to a 2011 DOL final rule stated that employee bonuses and other premium payments were incompatible with calculating overtime under the fluctuating workweek method of payment. Today’s proposed rule reverses this directive from the DOL, and expressly states that bonuses, premium payments, and other additional pay of any kind are compatible with the fluctuating workweek method. The DOL’s proposed rule explicitly states that “the Department is making clear that employers and courts should not rely on the statement in the 2011 Preamble that that “bonus and premium payments ... are incompatible with the fluctuating workweek method of computing overtime ...” The DOL further clarified that these additional payments must be included in calculating the employee’s regular rate of pay when determining overtime rates, and provides examples illustrating how the proposed rule should be applied.

In its press release announcing the proposed rule, the DOL states that the rule will allow employers to better compensate employees who participate in the fluctuating workweek method. Time will tell if the DOL’s goal is achieved, but for employers who use this method of payment, this proposed fluctuating workweek rule is no doubt a welcome clarification.

The DOL’s proposed rule was published on November 5, 2019, and will be available for review and comment for 30 days.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 309


About this Author

Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of employment matters including wage and hour class and collective actions, as well as complex, multi-plaintiff and single plaintiff employment discrimination claims brought not only by private plaintiffs but also initiated by the Equal Employment Opportunity Commission (EEOC).

Mark has successfully represented companies of virtually all sizes, litigating matters across multiple areas of the law, from the pleading stage through appeal. He has also represented clients in arbitrations and before administrative bodies.

Mark vigilantly stays abreast of cases, laws, and trends that may impact his clients coming out of the courts, Congress and the state legislature, as well as the U.S. Department of Labor, the EEOC, and state regulatory agencies. He strives to keep a watchful eye on how labor and employment related laws are evolving so as to proactively advise clients.

In addition to his regular legal practice, Mark has undertaken several pro bono cases including trying criminal jury trials in state and federal court, and representing indigent plaintiffs in civil rights matters as part of the federal Trial Bar.

Mark began honing his litigation skill during law school when he interned at the U.S. Attorney’s office for the Northern District of Illinois, where he handled both civil and criminal issues. He also interned for a judge on the U.S. Court of Appeals for the Seventh Circuit, which gave him a unique vantage of seeing the issues from the court’s perspective.