Department of Labor to Update Rule to More Easily Offer Benefits to Employees

Last week the U.S. Department of Labor announced a Final Rule that will allow employers to more easily offer perks and benefits to their employees. The rule marks the first significant update in more than 50 years to the regulations governing regular rate requirements under the Fair Labor Standards Act (FLSA). Those requirements define what forms of payment employers include and exclude in the FLSA’s “time and one-half” calculation when determining overtime rates.

The new rule clarifies which perks and benefits must be included in the regular rate of pay as well as which perks and benefits an employer may provide without including them in the regular rate of pay. Specifically, the final rule clarifies that employers may offer the following perks and benefits to employees without risk of additional overtime liability:

• The cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program) and adoption assistance;
• Payments for unused paid leave, including paid sick leave or paid time off;
• Payments of certain penalties required under state and local scheduling laws;
• Reimbursed expenses, including cellphone plans, credentialing exam fees, organization membership dues and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”;
• Certain sign-on bonuses and certain longevity bonuses;
• The cost of office coffee and snacks to employees as gifts;
• Discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples, and;
• Contributions to benefit plans for accident, unemployment, legal services or other events that could cause future financial hardship or expense.

The final rule also includes additional clarification about other forms of compensation, including payment for meal periods and “call back” pay. It can be viewed here and will take effect 30 days after its publication in the Federal Register.

More information about the final rule, including FAQs and a Fact Sheet, is available here.