DOL Issues Final Rule on Fluctuating Workweek Method of Computing Overtime


All Employers subject to the FLSA


August 7, 2020


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The U.S. Department of Labor (DOL) recently issued a final rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. Specifically, employers can pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, using the fluctuating workweek method of calculating overtime under the Fair Labor Standards Act (FLSA).

First, the final rule confirms that all bonuses and premium payments are compatible with the fluctuating workweek method. This eliminates the distinction between “productivity-based” and “hours-based” supplemental payments. Second, it reiterates the existing rule that bonus and premium payments must be included in the regular rate calculation and overtime calculations, unless otherwise excludable. Third, the DOL explained that an employee’s work hours are not required to fluctuate below 40 hours per week. Employee work hours must only fluctuate from week to week.

The rule also included several examples of how to calculate overtime using the fluctuating workweek method where an employee is paid (1) a nightshift differential, (2) a productivity bonus in addition to a fixed salary, and (3) premium pay for weekend work. Employers should keep in mind that some states have more restrictive overtime requirements than what is permitted under the FLSA, like Alaska, California, New Mexico, and Pennsylvania.

Action Items

  1. Read the final rule here.
  2. Prepare to adjust overtime calculations to reflect the new rule.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

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