Client Alerts

Regulatory Spring: Rulemaking by the Wage & Hour Division - June 21, 2019


Last week, the comment period ended for the Department of Labor’s Notice of Proposed Rulemaking seeking to revise and update the regulations interpreting the Fair Labor Standards Act’s (“FLSA”) regular rate of pay requirements.  Our Firm submitted comments, which can be found here.  In those comments, we:

  • Supported the Department’s proposal to treat vacation, sick, and other forms of paid time off similarly for the purposes of determining whether “cashed out” leave must be included in the regular rate. 
  • Agreed with the Department’s efforts to eliminate confusion over whether meal periods are properly excluded from the regular rate.
  • Noted that the Department’s proposal to align the exclusion of reimbursable expenses from the regular rate with the broader language and intent of the FLSA would also provide needed clarity to employers in states such as Illinois and California, which require reimbursement of expenses.
  • Requested that the Department provide further clarity on the types of “other similar payments” that can be excluded from the regular rate, such as employee wellness programs and fitness memberships, tuition benefits, sign-on bonuses, and employee discounts.
  • Supported the Department’s proposal to exclude state-law required show-up pay and call-back pay, as well as similar payments, from the regular rate.
  • Welcomed the Department’s clarification of the types of bonuses that can be excluded from the regular rate as discretionary.
  • Requested that the Department clarify its position with respect to the inclusion of certain benefits-type payments.
  • Proposed additional examples to support the Department’s clarification of how the regular rate should be calculated when an employer uses more than one method of payment (e.g., day rates and piece rates).

This week, we are finalizing comments on the joint employer proposal.  That deadline is June 25.  If you have any questions about these comments or the regulatory process at DOL generally, please contact us at