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DOL Publishes New FLSA Rules, Rejecting Pro-Employer Changes to Fluctuating Workweek and Comp Time, Clarifying Tip Credit Rules
On April 5, the Department of Labor (DOL) published its updates to its interpretative regulations regarding the Fair Labor Standards Act (FLSA) in the Federal Register. to go into effect 30 days later. The Updating Regulations, revise out of date CFR regulations. Specifically, these revisions conform the regulations to FLSA amendments passed in 1974, 1977, 1996, 1997, 1998, 1999, 2000, and 2007, and Portal Act amendments passed in 1996.
As noted by several commentators, the final regulations are noteworthy for what was not included as much as for what was. Below is a brief description of the most significant changes and those changes originally proposed, that were not adopted:
Fluctuating Workweek Under 29 C.F.R. §778.114
The proposed regulations issued by DOL in 2008 under the Bush administration (73 Fed. Reg. 43654) would have amended regulations on the “fluctuating workweek” method of calculating overtime pay for nonexempt employees who have agreed to received pay in the form of fixed weekly payments rather than in the form of an hourly wage. The proposed regulations would have amended 29 C.F.R. §778.114 to permit payments of non-overtime bonuses and incentives (such as shift differentials) “without invalidating the guaranteed salary criterion required for the half-time overtime pay computation.” The DOL left out this proposed change from the final rules however, saying it had “concluded that unless such payments are overtime premiums, they are incompatible with the fluctuating workweek method of computing overtime.” Explaining the decision not to amend the FWW reg, the DOL noted that “several commenters … noted that the proposal would permit employers to reduce employees’ fixed weekly salaries and shift the bulk of the employees’ wages to bonus and premium pay” contra to the FLSA’s intent. The DOL’s decision to decline the proposed amendment is consistent with virtually all case law on this issue, as discussed here and here.
The DOL has also decided to revise the proposed regulations’ interpretation of Congress’ 1974 amendment, section 3(m) of the FLSA, to require advance notice to tipped employees of information about the tip credit the employer is permitted to take based on its employees’ tips. The final rule combines existing regulatory provisions to assure such employees are notified of the employer’s use of the tip credit, and how the employer calculates it. This regulation too is consistent with case law on the subject, requiring advanced notice of the tip credit.
The final rules also do not include a proposed change that would have allowed public-sector employers to grant employees compensatory time requested “within a reasonable period” of the request, instead of on the specific dates requested. Instead, the final rule will leave the regulations unchanged, “consistent with [DOL’s] longstanding position that employees are entitled to use compensatory time on the date requested absent undue disruption to the agency.”
The new CFR regulations go into effect on May 5, 2011.
7th Cir.: In Order To Pay Proper “Comp Time” Under 553.25(d), A Worker Proposes A Date And Time For Leave. In The Absence Of Undue Disruption The Employer Must Grant Such Leave Or Violate 207(o)
Heitmann v. City of Chicago, Ill.
State and local governments are entitled to offer compensatory time off in lieu of overtime pay, if employees agree to this procedure. 29 U.S.C. § 207( o ). See Christensen v. Harris County, 529 U.S. 576 (2000). With the assent of the police officers’ union, Chicago has implemented a comp-time program. In this suit, some of the officers who have accumulated credits under the program contend that Chicago has made the leave too hard to use. A magistrate judge, presiding by the parties’ consent, agreed with plaintiffs and entered a detailed injunction specifying how Chicago must handle all future applications for compensatory leave. 2007 U.S. Dist. Lexis 67684 (N.D.Ill. Sept. 11, 2007) (decision on merits); 2008 U.S. Dist. Lexis 12983 (N.D.Ill. Feb. 21, 2008) (injunction).
An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency-
(A) who has accrued compensatory time off authorized to be provided under paragraph (1), and
(B) who has requested the use of such compensatory time,
shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.
Plaintiffs say that a need to consider “undue disruption” supposes a particular time, so that employees are entitled to leave on a date and time of their own choosing, unless this would mean that too few police officers remained available for service. Chicago reads the language to mean that the Police Department, rather than the officer, gets to name the date and time for leave. Officers may submit requests; all the Department need do is offer some leave within a “reasonable time” of the request. The only effective restraint, in the City’s view, is that officers may not accumulate more than 480 hours of leave. Compensatory time is granted whenever an officer works more than 171 hours in any 28-day period. (Ninety minutes of comp time are awarded for each extra hour worked.) Once any given officer accumulates more than 480 hours, future overtime must be paid in cash. As long as it keeps the balance below 480 hours per officer, the City submits, it gets to call the shots about when the leave may be used.
After the parties collected extensive evidence, the magistrate judge found it undisputed that the Police Department does not have any policy about how and when leave may be used; decisions are left to each watch commander or shift supervisor. Most commanders or supervisors, most of the time, grant or reject applications for leave on a specific day without giving reasons. They do not attempt to get a substitute for a person who wants time off; instead they ask whether the shift or unit still would have enough personnel if leave were granted and no other change were made. If an application is granted, the supervisor or commander may or may not give the officer the date and time requested. If the application is denied, it is not put in a queue for use at the next time when leave would not “unduly disrupt” operations; instead the application is returned to the officer, who is told to apply again-but without any guidance about when leave could be made available without undue disruption. The Department does not keep records of requests for compensatory leave, so we do not know how often officers get to take time off on the dates they request, or even how many times they must apply (on average) to have any leave granted.
The magistrate judge concluded that these informal procedures fail to ensure that each worker gets to use leave within a reasonable time, and do no ensure that officers get their choice of dates for leave unless undue disruption would ensue. He issued an injunction to supply the rules he thought needed. The 7th Circuit determined that the Magistrate below made a misstep by ordering injunctive rather than monetary relief.
The 7th Circuit agreed, holding, “[u]nder § 553.25(d), a worker proposes a date and time for leave. The employer decides whether time off then would cause undue disruption, and if it would the employer has a reasonable time to grant leave on some other date. On Chicago’s view, the employee cannot ask for a particular date or time, but only for some leave; and if any time off within a reasonable time after the request would cause undue disruption, then the employee must wait longer-must wait, by definition, for an un reasonable time. That can’t be right. Chicago’s view produces an implausible relation between the “reasonable time” and “undue disruption” clauses. The regulation makes sense when specifying that the employer must ask whether leave on the date and time requested would produce undue disruption, and only if the answer is yes may the employer defer the leave-and then only for a “reasonable time.””
Noting that their were amendments to 553.25(d) pending which may change the outcome of the case, the Court stated, “[b]ecause § 207( o )(5) is ambiguous, the agency enjoys leeway in crafting regulations. Last year the Department of Labor proposed to amend 29 C.F.R. § 553.25(c) and (d) so that employees could no longer designate the date and time for leave. 73 Fed.Reg. 43654, 43660-62, 43668 (July 28, 2008). That rulemaking remains open, however. As long as the current version of § 553.25 remains in force, the plaintiffs are entitled to prevail.”