Regular rate—DOL issues opinion letters amid pandemic

Right now, it feels like all COVID-19 all the time, and employers are focused on serious issues—what a layoff might look like, what unemployment compensation is available to employees, and how to keep the business afloat. The U.S. Department of Labor (DOL) definitions and issues relating to the calculation of regular rate remain important as we think about moving forward to determine overtime and other issues, but also when considering the new emergency sick leave and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions in the recently passed Families First Coronavirus Response Act (FFCRA).

In addition to dealing with COVID response matters, the DOL continues its regular work. It recently issued three new opinion letters regarding the calculation of regular rate.

Benefits

FLSA 2020-5 (issued March 26) answers questions about whether benefits provided to an employee, such as health insurance, are to be included in the calculation of the regular rate. The DOL notes, “the regular rate includes 'remuneration from employment paid to, on behalf of, the employee,' subject to eight statutory exclusions.” It continues, “there is no presumption that income taxable under the IRC must be included in the regular rate.”