The Trump Administration has issued its regulatory agenda, which is a semi-annual statement of the short- and long-term policy plans of government agencies. The DOL is at the forefront of these changes to come. The agency stated that it will revise the definition of “regular rate,” the number that forms the basis for overtime computations

There have been many class actions concerning the job title “Assistant Manager” and this malady has risen again.   The chain, Hooters, has been sued in a nationwide collective action that alleges the Company misclassified assistant store managers, calling them supervisors, in order to avoid paying overtime.  The case is entitled Stirewalt et al. v. Hooters

Under the FLSA, bonuses are excludable from the regular rate only if the employer can affirmatively demonstrate that the bonus fits into a specific statutory exclusion. In order for a bonus payment to be excluded it must be discretionary, which requires that the bonus meet all of the following requirements:

  1. The employer must retain discretion

There had been an initiative to change the regulations regarding the fluctuating work week (“FWW”) computation of overtime found in 29 CFR 778.114 by allowing the payment of non-overtime bonuses and incentives without invalidating the guaranteed salary criterion required to allow an employer to pay half-time overtime under the formula set forth in the regulation.

A federal judge has conditionally certified a FLSA collective action which was instituted by a production workers in an action in which the plaintiffs claim that many kinds of payments were not included when the company calculated their overtime.  There were lump sum payments, flexibility payments for working during certain operational contingencies, various night work