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In 'welcome news' for employers, DOL proposes fluctuating workweek update

November 05, 2019 / Ryan Golden

Employers may soon have greater clarity when it comes to overtime calculations for workers with fluctuating workweeks, thanks to a proposed rule announced by the U.S. Department of Labor (DOL) Monday. The Fair Labor Standards Act (FLSA) offers an overtime calculation that an employer can use for an employee whose hours fluctuate from week to week. Under this method, an employer may use a fixed salary; it then must determine the worker's regular rate based on his or her hours worked and use this to pay overtime which the provision allows the employer to pay at half the worker's regular rate. Monday's proposal would make clear that employers using this method must include incentive-based pay, like bonuses and premium payments, in that calculation. The Notice of Proposed Rulemaking (NPRM) also includes examples of the types of payments allowed, and is subject to a 30-day public comment period.