Fluctuating Workweek Rules Received by White House Regulatory Subcommittee

On August 15, 2019, the White House’s Office of Information and Regulatory Affairs (OIRA) received the Department of Labor’s (DOL’s) new rule to amend current regulations [ORIA website, Pending EO 12866 Regulatory Review].

Background. 29 CFR 778.114 generally permits employers to use fluctuating workweeks to pay employees a fixed weekly salary, regardless of the number of hour worked if: (1) the employee’s hours must fluctuate from week to week; (2) the employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime premiums); (3) the fixed amount must provide compensation every week at a regular rate at least equal to the minimum wage rate; and (4) the employer and employee must share a clear mutual understanding that the employer will pay the fixed salary regardless of the number of hours worked.

The DOL announced in the Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions that it would be issuing a notice of proposed rulemaking (NPRM) regarding the fluctuating workweek rule amendments . Due to a federal appellate court ruling that prohibited an employer from using incentive payments in fluctuating workweek calculations , the DOL noted in the Agenda that it would propose regulations to permit different forms of compensation to be used in fluctuating workweek calculations [RIN 1235-AA31, Fluctuating Workweeks Under the Fair Labor Standards Act].

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