Seyfarth Synopsis: The U.S.
Department of Labor's Wage & Hour Division issued a proposed rule on the fluctuating workweek
method of pay. The proposal continues a regulatory saga started in
2008, and clarifies that payments in addition to the fixed salary
are compatible with the fluctuating workweek method of
compensation, and, in most cases, must be included in the regular
rate of pay.
Specifically, the proposed regulation would clarify that bonus
payments, premium payments, and additional pay are consistent with
using fluctuating workweek. The extra payments, unless they are
excluded under FLSA section 7(e)(1)-(8), must be included in the
calculation of the regular rate. This is similar to a Bush
Administration proposal issued in 2008, which was not implemented
when the rule was finalized by the Obama Administration in
2011.
