The U.S. Department of Labor has issued a final rule that will allow employers to more easily offer perks and benefits to their employees by clarifying that they do not count in calculating an employee’s regular rate of pay.
The rule released Dec. 12 marks the first significant update 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.
The previous regulatory landscape left employers uncertain about the role that perks and benefits play when calculating the regular rate of pay. 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.
“This final rule encourages employers to invest in the American workforce, to the benefit of their employees,” U.S. Labor Secretary Eugene Scalia said. “In a robust economy with a million more open jobs than job seekers, we must allow employers to offer perks and benefits that will attract talent for open jobs and compensate employees for their hard work. This rule is an important step in that direction.”
“The regular rate final rule provides clarity that allows employers to provide more benefits to their employees without unknown overtime consequences or litigation,” said Cheryl M. Stanton, Administrator for the Department’s Wage and Hour Division. “Allowing employers to offer more perks at work provides a positive path forward for employers and employees alike.”
Specifically, the final rule clarifies that employers may offer the following perks and benefits to employees without risk of additional overtime liability:
- 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. It can be viewed here and will take effect 30 days after its publication in the Federal Register.
More information about the final rule, including FAQs and a Fact Sheet, is available here.
WHD’s mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation’s workforce. WHD enforces Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the FLSA. WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act, and a number of employment standards and worker protections as provided in several immigration related statutes. Additionally, WHD administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act and other statutes applicable to Federal contracts for construction and for the provision of goods and services.
The mission of the Department of Labor is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.