Late last week the Department of Labor announced a Final Rule that will allow employers to more easily offer bonuses and benefits without worrying about the regular rate of pay. The rule is the first major change to the regulations governing regular rate requirements under the Fair Labor Standards Act (FLSA) in over 50 years. Those requirements define what forms of payment employers include and exclude in the FLSA’s “time and one-half” calculation when determining overtime rates. It will take effect 30 days after its publication in the Federal Register.
The final rule clarifies that employers may offer the following perks and benefits to employees without risk of additional overtime liability (that is, these need not be included for purposes of recalculating the 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 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 and;
- contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.
The final rule also includes additional clarification about other forms of compensation, including payment for meal periods and “call back” pay.
More information about the final rule, including FAQs and a Fact Sheet, is available at https://www.dol.gov/agencies/whd/overtime/2019-regular-rate.