The best answer to our May 8, 2013 Quick Quiz is, "$110.00".  In declining percentage order, the responses were:

"None":          (80.4%)

"$110.00":     (15.7%)

"$137.50":     (3.9%)

"$412.50":     (0.0%)

Does The FLSA Allow Day-Rate Plans?

The federal Fair Labor Standards Act does permit employers to pay non-exempt workers on a day-rate basis.  See 29 C.F.R. § 778.112.  Under this approach, employees receive a fixed amount of daily pay for each workday on which they perform any work, regardless of the number of hours worked in the workday.  The day-rate payments represent straight-time compensation for all work done in the workweek, both those hours worked up to 40 and those worked over 40.

But the point we intended to illustrate is that a day-rate payment cannot "include" or "build in" any FLSA overtime premium pay, no matter how the day-rate sum was set.  Cf. 29 C.F.R. §§ 778.310, 778.500.  When a day-rate employee works more than 40 hours in a workweek, he or she must receive FLSA overtime premium pay in addition to the total day-rate wages for the workweek.  Figuring the overtime amount due begins with the proper computation of the FLSA regular hourly rate of pay.

Because the employee's total day-rate pay is remuneration for all hours worked in the workweek, the regular rate is determined by dividing the person's total day-rate compensation for the workweek by his or her total hours worked in that workweek.  Of course, this regular rate can never be less than the FLSA minimum wage (or any higher required rate).  This also assumes that the employee has received no other compensation that must be included in the regular rate.

The total day-rate pay is compensation for both straight-time and overtime hours (in other words, it is the "one" of "one and one-half").  Therefore, the employee is due an additional 50% of the regular rate times the FLSA overtime hours worked.

How Is Technician Tom's Total Pay Determined?

For these reasons, Technician Tom is due additional FLSA overtime premium pay for his ten overtime hours worked, despite how his day-rate payment was established.  The overtime amount is calculated this way:

($1,100 Day-Rate Pay) ÷ (50 Hrs.) = $22.00 Per Hr. Regular Rate

($22.00 Per Hr. × 50%) = $11.00 Per Hr. OT Premium Rate

($11.00 Per Hr.) × (10 OT Hrs.) = $110.00 OT Premium Due.

Technician Tom's total pay for the workweek is therefore ($1,100.00 + $110.00) = $1,210.00.  If he had instead worked 45 hours in the workweek, then his total pay would have been:

($1,100 Day-Rate Pay) ÷ (45 Hrs.) = $24.44 Per Hr. Regular Rate

($24.44 Per Hr. × 50%) = $12.22 Per Hr. OT Premium Rate

($12.22 Per Hr.) × (5 OT Hrs.) = $61.10 OT Premium Due.

($1,100 + $61.10) = $1,161.10.

As always, employers must also take into account the relevant requirements of different laws and the laws of other jurisdictions. It is important to ensure that whatever overtime computation the employer uses complies with all of the applicable overtime provisions.

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The Big Corporation decides that it will start paying its Field Service Technicians on a day-rate basis, instead of on an hourly basis.  Under the day-rate plan, a Technician will now receive a fixed amount of money for each workday in which he or she performs any work, regardless of the number of hours the Technician works in the workday.  The day-rate payments represent compensation for all hours worked in a workday and in a workweek.

A Technician's schedule is to work ten hours a day, five days a week.  Management therefore sets each Technician's day-rate payment based upon (i) eight hours times the Technician's hourly rate at the time of the change, plus (ii) 1.5 times that hourly rate times two hours.  For example, Technician Tom's day-rate sum is set at [($20 × 8 hrs.) + ($20 × 2 hrs. × 1.5) = $220.

During the first workweek under the new plan, Technician Tom performs work on five workdays and works exactly 50 hours, for total day-rate pay of (5 days × $220) = $1,100.  How much more must The Big Corporation pay Tom in order to comply with the federal Fair Labor Standards Act?

Please use the poll buttons to the right to register your answer.

The correct answer to our July 1 Quick Quiz is "$25".  The results were:

"$54.38":  (7.1%)

"$60":  (32.1%)

"None, because she is paid at a piece-rate.":  (33.9%)

"$25":  (21.4%)

"$20":  (5.4%)

One point we wanted to illustrate is that an employee is not exempted from the federal Fair Labor Standards Act's overtime-compensation requirements just because he or she is paid at a piece-rate.

The key to the correct response lies in properly determining Anne's "regular rate" of pay for purposes of calculating the FLSA overtime compensation she is due.  The FLSA regular rate for a particular workweek is figured by dividing the employee's total compensation for that workweek by the total number of hours worked in that workweek for which the compensation was paid.  See, e.g., 29 C.F.R. §§ 778.109, 778.111.

So How Is Her FLSA Overtime Calculated?

In the hypothetical, Anne's straight-time compensation for her 45 hours of work is (300 Devices × $1.50) = $450.  Therefore, her FLSA regular rate of pay is ($450 ÷ 45 Hrs.) = $10.00 per hour.  Her FLSA regular rate is higher than both the $7.25-per-hour minimum wage and her $8.00-per-hour guaranteed rate.

Her $450 in piece-rate pay represents the "one" of the "one and one-half" overtime rate required by the FLSA, so she must be paid additional half-time overtime premium at a rate of ($10.00 ÷ 2) = $5.00 per hour.  Consequently, under the FLSA, Anne is due for this workweek the sum of ($5.00 × 5 OT Hrs.) = $25 in overtime premium pay, for total FLSA wages of ($450 + $25) = $475.  See, e.g., 29 C.F.R. § 778.111.

There Is Another Approach.

The FLSA authorizes an alternative way to figure piece-rate overtime pay.  FLSA Section 7(g)(1) permits the employer to do this by paying at least 1.5 times the piece-rate(s) applicable to the pieces or units produced during overtime hours.

Assume that Anne had assembled 270 devices in her first 40 hours worked in the workweek and another 30 devices in her next five hours worked in that workweek.  If Anne's employer had instead adopted the Section 7(g)(1) method of calculating her overtime, her FLSA total gross wages would have been:

(270 Devices × $1.50) = $405 Wages For First 40 Hours

[($1.50 × 1.5) × 30 Devices] = $67.50 Wages For Overtime Hours

($405 + $67.50) = $472.50.

Among the requirements for using this alternative are that:

♦   There must be an advance agreement or understanding with the employee that this method will be used;

♦   The piece-rate must be a bona fide one (that is, it is the rate actually paid for the work when it is performed in non-overtime hours);

♦   The employee's average hourly earnings for the workweek (not counting overtime premium pay and certain other amounts) must come to at least the FLSA minimum wage;

♦   The overtime compensation must come to at least 1.5 times the minimum wage for the overtime hours worked;

♦   The proper FLSA overtime compensation must also be paid on other kinds of pay the employee receives (such as production bonuses) that are includable in the regular rate.

Of course, employers must always take into account the applicable requirements of different laws or the laws of other jurisdictions, and it is especially important to ensure that other such requirements permit this alternative.

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Anne is paid $1.50 for each remote-control device she assembles.  This is her straight-time compensation for all of her hours worked in a workweek.

She is guaranteed an average hourly rate of at least $8 an hour for her work.  The minimum wage in the state in which she works is the same as the federal Fair Labor Standards Act minimum wage, that is, $7.25 per hour.

In a particular workweek, Anne assembles 300 devices and works 45 hours.  How much FLSA overtime pay is she due?

A compressed schedule colloquially called a "9/80" pay plan seems to be making a comeback.  Under this arrangement, the federal Fair Labor Standards Act "workweek" and the schedule for non-exempt employees are set so that the employees work:

♦   Nine days in a two-workweek period, but

♦   Not more than 40 hours in either workweek.

How Does It Work?

Under a typical 9/80 arrangement, the non-exempt employee works four 9-hour days, followed by an 8-hour workday day that is split into 4-hour portions by the mid-day ending of the first workweek, and then works four more 9-hour days in the second workweek.  The key is that the employee's workweek ends during the 8-hour workday, causing the first four hours worked that day to fall into one workweek and the remaining four hours worked that day to fall into the next workweek.  In this way, the employee's hours worked in each workweek do not exceed 40.

If the employee actually works exactly what the schedule calls for during the two workweeks, then no FLSA overtime pay is due for either workweek.

But whatever management's expectations might be as to the scheduled, usual, or ordinary worktime for the employees, the employer still must pay FLSA overtime to every non-exempt employee who ends up working more than 40 hours in either workweek.  For example, if in one workweek an employee works three 9-hour days, one 10-hour day, and one 5½-hour day for a 42½-hour total in the workweek, the worker would be entitled to 2½ hours of FLSA overtime pay for that work.

Other Important Considerations

Most employers must change the affected employees' FLSA workweek in order to adopt a 9/80 plan.  As we have said in another post, employers changing the workweek should follow a U.S. Labor Department protocol used to evaluate whether an employee has worked any FLSA overtime during the pay-period in which this change occurs in order to ensure that the worker receives the proper FLSA compensation for any such overtime.

An approach that passes muster under the FLSA must still be evaluated against, and take into account the implications of, the applicable laws of other jurisdictions in which the employer employs people.  For instance, if a state's law requires overtime premium pay for hours worked over 8 in a workday, then the 9/80 plan will result in an obligation to pay daily overtime to employees in that state.

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Readers of our earlier post have asked whether there are additional ways to control or even reduce labor costs consistently with the federal Fair Labor Standards Act.  There are, and we will again divide our discussion between mistaken beliefs and possible opportunities.

Avoid Expensive Misconceptions

There are other recurring points of "conventional wisdom" that can drive up wage costs.

One is the erroneous view that an employer must pay the same hourly rate for compensable travel time or training time that it pays for the employee's normal or principal work.  But the fact is that nothing in the FLSA prevents an employer from paying a different and lower hourly rate (of not less than the minimum wage) for different kinds of worktime.  How the employer figures overtime compensation in those situations is beyond this post's scope, but it can be done without great difficulty.

Another example is the proposition that employees must be paid overtime compensation for working beyond their scheduled stopping times.  This is not the case under the FLSA, which (with a few specialized exceptions) only requires overtime pay for hours worked in excess of 40 in a workweek.  It is of course possible that a union contract, an employer's policy, an employment contract, or a state daily-overtime law might call for a different answer.

Consider Additional Alternatives

The FLSA does not say that non-exempt employees must be paid at an hourly rate or in any other particular way.  It simply requires that, whatever the pay plan is, the employer must still comply with the FLSA's minimum-wage, overtime, and timekeeping requirements.  This leaves a lot of room for a variety of approaches, such as:

♦   A salary-plus-overtime arrangement, which can take different forms depending upon what number of hours worked the salary is paid to compensate;

♦   A day-rate plan, which is based upon an employee's receiving a fixed amount for each workday in which he or she performs any work, without regard to the number of hours worked in the workday;

♦   A piece-rate or job-rate plan, under which employees receive a fixed amount for each piece or item produced or job completed; or

♦   A commission plan, which calls for employees to receive sales-based compensation.

Naturally, an employer should be careful in designing, implementing, and administering any pay plan to ensure that the plan actually produces FLSA-compliant wages.  For instance, the employer still must compute and pay the necessary FLSA overtime premium under a day-rate, piece-rate, job-rate, or commission method.

And, as we said last time, employers must be certain that whatever they decide to do is also permitted under all applicable state and local laws, under special "prevailing wage" requirements, and so on.

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Employers' continued struggles with labor costs have led to additional hourly-rate cuts, salary reductions, furloughs, layoffs, and similar conventional measures.  But are there other potentially less-disruptive and legal options?  There might well be.

What Does The Law Really Require?

For one thing, management should purge pay plans and policies of any expensive misconceptions about what the law does and does not require.  For instance, some employers believe that non-exempt employees' unworked paid-time-off for holidays, sick days, or even vacation days must be counted as hours worked when computing overtime under the federal Fair Labor Standards Act.  This is not so, and eliminating this unworked paid-time-off from FLSA overtime calculations could result in appreciably lower wage costs.

Also, some state wage-hour laws are considerably more employee-favorable than either the FLSA or similar laws in other jurisdictions.  Whether through misunderstanding or for other reasons, some organizations employing people in multiple states pay all employees as if they work in the jurisdiction with the highest wage requirements.  As an example, a multi-state company might pay non-exempt Georgia employees overtime for hours worked over eight in a workday (even though Georgia does not require this), because the company is legally obligated to do so for similar California workers.

What Pay Alternatives Might There Be?

Employers should also consider relatively-straightforward measures that could cut or at least minimize labor expense.

One illustration relates to the seven-day "workweek" that employers must select and document in order to comply with the FLSA's overtime requirement.  Most employers must of course pay non-exempt employees FLSA overtime premium for all their hours worked over 40 in a single workweek.  While the workweek cannot be changed retroactively or frequently to evade the FLSA's obligations, the workweek can be re-established on a lasting, going-forward basis.  And employers can choose different workweeks for different groups of employees or for different locations.  If patterns of activity unique to a particular department or facility typically add up to overtime hours under the workweek that applies company-wide, then the employer could consider whether adopting a separate workweek just for that department or facility would decrease or eliminate the overtime costs.

Management should also consider whether helpful FLSA exemptions, exceptions, or refinements might be available.  Some of these measures might affect wage costs directly.  Others might streamline the payroll process so as to reduce administrative expense.  Still others might tie compensation more closely to productivity so as to increase revenue (see our post on the Section 7(i) exemption, for example).  Of course, in today's legal environment, it is essential to evaluate these matters carefully before acting.  Possible missteps flowing from near-term financial pressures will ultimately be self-defeating or worse if they provoke million-dollar litigation.

As always, employers must be certain that whatever they decide to do for FLSA purposes is also permitted under all applicable state and local laws, under special "prevailing wage" requirements, and so on.

And whatever the law permits, employee morale is obviously an important consideration.  However, employees might well react favorably to measures that avoid more-stringent steps, such as layoffs.

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Section 3(m) of the federal Fair Labor Standards Act allows a portion of the employee's FLSA-required minimum wages to consist of tips.  Unfortunately, it is all-too-common for employers to make expensive mistakes where tips are concerned.

Fundamental Rules

Tipped employees are those engaged in occupations in which they customarily and regularly receive more than $30 a month in tips.  Tips they actually receive may be counted as FLSA wages up to a current maximum of $5.12 per hour; the employer must pay them at least $2.13 an hour in addition to tips.  The FLSA requires an employer to tell each tipped employee about the law's tip-credit provisions in advance.  And, as we reported in May, the U.S. Labor Department now says that other notifications are also required.

The employee's creditable-tips-plus-wages total must come to at least the current minimum wage of $7.25; the employer must make up any shortfall.  Employees must be allowed to keep their tips, except that they can be required to contribute to a tip-pool participated in only by other employees who customarily and regularly receive tips.

Pitfalls and Misconceptions

Among the typical problems are:

♦   Failing to provide the necessary tip-credit notification;

♦   Not ensuring that the total of an employee's hourly wage plus his or her creditable tips equals at least the minimum wage; or

♦   Not being able to document that employees actually received enough in tips to cover the credit taken.

Employers also find themselves facing liability for:

♦   Taking the tip-credit for hours a "dual function" employee spends in non-tipped work (learn more here);

♦   Calculating overtime at 1.5 times only the employee's $2.13-per-hour cash wage;

♦   Taking a larger tip-credit for overtime hours than for non-overtime ones;

♦   Withholding uniform costs, shortages, breakage, "walk-outs", and so on from an employee's tips; or

♦   Maintaining invalid tip-pools.

Trouble can also result from lumping both tips and service charges under the catch-all term "gratuity".  An FLSA tip-credit "tip" is a payment the patron decides whether to make, and as to which the patron decides how much to give and to whom to give it.  No tip credit may be taken for a compulsory service charge imposed by the employer.  What's more, service charges paid to employees must be included when figuring any FLSA overtime pay they are due.

What About Other Laws?

Some states do not permit taking a tip-credit, while others allow one but restrict the amounts in ways which are different from the FLSA's provision.  Also, an increasing number of states and other jurisdictions prescribe what employers may, may not, and must do where sums representing tips and service charges or fees are concerned.

Employers should immediately check to see whether tips and tip-credit matters are being handled in the proper way.  Even if things used to be fine, management is not always aware of changes in the law or in day-to-day procedures that can lead to major problems.

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Affected employers will no doubt have a variety of wage-hour questions in the aftermath of Hurricane Irene.  The number and scope of the issues raised might well be practically endless.  In this post, we address in very general ways the federal Fair Labor Standards Act topics that experience suggests will be among the most-pressing.

◊   What do we do about lost time records for work already performed but not yet paid?

If the only records of hours worked are lost or unusable, then there is no perfect solution.  Re-create the most accurate accounting you can under the circumstances.  Perhaps the preferred approach is to ask each employee to make the best-possible estimate of his or her hours worked. You should obtain the employee's written acknowledgement of his or her best recollection and should include the employee's authorization allowing later corrections in worktime and pay should more accurate hours-worked information become available.

◊   How do we track employees' worktime without our electronic/computerized time clocks?

Employees may record all hours worked by using handwritten timesheets.  To ensure accuracy, each employee should enter his or her own time and should record the actual times when the employee's work starts and stops each workday.

◊   As we recover, must we keep paying overtime on top of our other burdens?

At this time, there is no FLSA "emergency" exception that relieves the obligation to pay FLSA-required wages.  Employees subject to the FLSA's overtime provision must receive overtime premium at a rate of at least 1.5 times their regular rates of pay for all hours worked over 40 in the designated seven-day workweek.

If employees are covered by a collective bargaining agreement, it might contain additional overtime provisions requiring more than the FLSA does.  Perhaps the terms of the agreement relax those requirements in emergencies.  However, a collective bargaining agreement cannot override the FLSA's requirements.

◊   Can an employee volunteer to perform recovery services for us without pay?

The FLSA does not permit employees to "volunteer" unpaid time to the employer under any but the narrowest of circumstances.  For example, if a manufacturing facility sets up a hotline or makes other arrangements to provide a clearinghouse for information about the status of the workplace and employee reporting times, non-exempt employees volunteering to perform such services are engaged in compensable hours worked for FLSA purposes.  Employers considering any kind of unpaid "volunteer" services by their employees should evaluate the legality of doing this carefully and in advance.

◊   Must we keep paying employees who are not working?

Under the FLSA, for the most part the answer is "no".  FLSA minimum-wage and overtime requirements attach to hours worked, so employees who are not working are typically not entitled to the wages the FLSA requires.

One possible FLSA-related exception is for employees treated as FLSA-exempt whose exempt status requires that they be paid on a "salary basis".  Generally speaking, if such an employee performs at least some work in the designated seven-day workweek, the "salary basis" rules require that he or she be paid the entire salary for that particular workweek.  There can be exceptions here, too, such as might sometimes be the case where the employer is open for business but the employee decides to stay home for the day.

Also, non-exempt employees paid on a "fluctuating-workweek" basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work.  There are a few exceptions, but these are even more-limited than the ones for exempt "salary basis" employees.

Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining contract, or some policy or practice that is enforceable as a contract or under a state wage law.

◊   What can we do about charging missed time to vacation and leave balances?

The FLSA generally does not regulate the accumulation and use of vacation and leave.  The "salary basis" requirements for certain FLSA-exempt employees can implicate time-off allotments under various circumstances, some guidance on which the U.S. Labor Department has provided in opinion letters accessible here and here.

Again, however, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining contract, or some policy or practice that is enforceable as a contract or under a state wage law.

◊   When is travel time "hours worked" for purposes of computing FLSA wages due?

FLSA travel-time "rules" are not seamless, up-to-date, or necessarily logical or consistent with common sense.  The best-known ones are that:

•   Normal commuting between home and work typically is not considered to be hours worked, and

•   Travel between one assignment and another during a workday typically is hours worked.

However, even these principles are subject to exceptions and elaboration.  The best starting point is to consider each scenario an employer faces under the U.S. Labor Department's basic interpretations on travel time.  They are compiled at 29 C.F.R. §§ 785.33-785.41 and may be accessed here.

________________

Remember that other requirements, such as those applying to government contractors or subcontractors and those of states or other jurisdictions, can also be relevant to these questions.

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The U.S. Labor Department's unfounded April fluctuating-workweek commentary (earlier post here) continues to complicate many pre-existing pay plans and to cause employers to narrow their views of the available compensation alternatives.  This is the foreseeable (and apparently intended) result of what DOL said.  Unfortunately, some observers are compounding the impact of DOL's commentary by suggesting that its ramifications are more dire than ought to be the case.

We have previously noted that the federal Fair Labor Standards Act grants no regulatory authority to DOL to make such pronouncements.  Probably for this reason, the commentary purported to draw substance from sprinkled-in references to the seminal U.S. Supreme Court case of Overnight Transportation Co. v. Missel, 316 U.S. 572 (1942), which embraced the concept underlying the fluctuating-workweek calculation.  But DOL's effort is an illusion.

For example, Missel does not support DOL's assertion that paying bonuses, incentive payments, or other additional amounts is "incompatible" with figuring overtime on a fluctuating-workweek basis.  The Court did not address this proposition at all; it simply proceeded from the facts as they were presented (which involved a weekly wage for whatever hours the employee worked) and explained how FLSA overtime was to be computed on those facts.  The Court did not say, or so much as even imply, that the fluctuating-workweek calculation was inappropriate where other forms of pay are in the picture.

DOL also opined that fluctuating-workweek overtime might create an incentive to work employees long hours because it "results in a regular rate that diminishes as the workweek increases . . .."  On this premise, DOL found it inappropriate "to expand the use of this method of computing overtime pay beyond the scope of the current regulation."  Of course, the FLSA does not prescribe and in fact does not even address any maximum number of hours that adult employees can be required to work.  Moreover, DOL is not authorized to decide whether to "expand" or contract the use of the fluctuating-workweek method for computing overtime.  The Supreme Court's reading of the FLSA trumps DOL's musings in this area, and DOL must have overlooked this statement in Missel:

It is true that the longer the hours, the less the rate and the pay per hour.  This is not an argument, however, against this method of determining the regular rate of employment for the workweek in question.

316 U.S. at 580.

Having thrown sand in the gears, DOL has offered no specific elaboration upon what the actual effects of its commentary might be.  Others have filled this gap with suppositions that are not anchored in first principles.

As an illustration, assume that an employee receives a salary of $500 each workweek as straight-time pay for all hours worked and is also paid commissions on her sales made during all her hours worked each workweek.  Assume also that, in one workweek, she works 50 hours and is due $100 in commissions, for total gross pay of ($500 + $100) = $600.  Even if her commission pay is supposedly "incompatible" with fluctuating-workweek overtime, how much FLSA overtime pay is she due for that workweek?

Some have suggested that her overtime must be computed this way:

($600 ÷ 40 hrs.) = $15 Per Hr. "Regular Rate"
($15 × 1.5 × 10 OT hrs.) = $225,

for total FLSA pay of ($600 + $225) = $825.  In our view, dividing by 40 hours and paying an extra 1.5 times the resulting rate for overtime hours is not required under the FLSA, notwithstanding what DOL said.

Under Missel, the FLSA "regular rate" is determined by dividing the employee's total compensation for a workweek by the total number of hours for which that compensation was paid.  This is so whether the straight-time wages are paid for a fixed number of hours or for a varying number of hours, and it remains the bedrock principle underlying FLSA overtime pay.  See, e.g., 29 C.F.R. § 778.109.  Where the straight-time wages were paid for all of the employee's hours worked, the proper FLSA overtime premium is one-half of a regular hourly rate that declines as the hours worked increase.  See, e.g., 29 C.F.R. § 778.118.

And, more to the immediate point, this is all still true even when a fluctuating-workweek approach is "invalid or otherwise inapplicable."  See, e.g., Opinion Letter of Wage-Hour Administrator No. 1016, 69-73 CCH-WH ¶30,563 (June 24, 1969)(discussed in our earlier post).  In other words, 40 is not automatically the default divisor, and 1.5 is not the inevitable multiplier, even if a fluctuating-workweek approach has been undercut for some reason.  Whatever the basis for the employee's pay is, and even if that basis is somehow legally flawed in whole or in part, the FLSA regular rate and the overtime due still depend upon the number of hours for which the compensation was paid.  Cf. Section 32g07(b), Field Operations Handbook (U.S. Labor Department, February 28, 1986)(40 hours not used as the default divisor even for an invalid "Belo" plan).

Because our hypothetical facts show that the employee's straight-time wages were paid for all of her hours worked, the correct FLSA calculation is:

($600 ÷ 50 hrs.) = $12 Per Hr. "Regular Rate"
[($12 ÷ 2) × 10 OT hrs.) = $60 OT Premium Pay
($600 + $60) = $660,

or $165 less than the first computation.  The principles leading to this approach are independent of whatever DOL's policy preference is, and DOL has no power to curtail them.

That said, unless and until DOL withdraws or repudiates its April statements, or until a court consensus rejecting them emerges, employers should expect investigators and plaintiff's lawyers to press those statements to the hilt.  Even so, the underlying FLSA overtime principles remain unchanged, and employers who are willing to do so should be ready to assert them.

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