Regular Rate of Pay under the FFCRA – It’s Not Necessarily the Base Wage

PDF
March 27, 2020
Michael Wong and Sara Zorich
SmithAmundsen Labor & Employment Alert
Subscribe

For purposes of the Families First Coronavirus Response Act (FFCRA), the regular rate of pay used to calculate an employee’s paid leave is not necessarily the employee’s base wage or salary.  According to the Department of Labor (DOL) FAQs regarding the FFCRA, the pay rate for an employee’s FFCRA leave is the average of the employee’s regular rate over a period of up to six months prior to the date the employee takes the leave. If the employee has not worked for the employer for at least six months, the regular rate used to calculate any FFCRA paid leave is the average of the employee’s regular rate of pay for each week the employee has worked for the employer.

In order to determine an employee’s regular rate for a workweek under the Fair Labor Standards Act (FLSA), the formula is: Total compensation in the workweek (except for statutory exclusions) ÷ Total hours worked in the workweek = Regular Rate for the workweek.

*Note, some states may have different regular rate calculations and items that are “excludable”.

For purposes of the FFCRA regular rate, employers have 2 options:

Note, when determining the regular rate, if an employee is paid with commissions, tips, or piece rates, non-discretionary bonuses, those wages will be also need to be incorporated into the regular rate of pay calculation.

Under the FLSA, the following can be excluded from the regular rate IF there is no connection to hours worked and the employer has not agreed to include them as hours worked: gifts, business expenses, travel expenses, discretionary bonuses, vacation pay, holiday pay, illness pay, gym memberships, parking, wellness programs, profit sharing plans, employer contributions to retirement plans, stock options and premium overtime pay. (See Fact Sheet #56A for additional information). However, employers should review their policies and procedures to determine if they have any agreements to include otherwise excludable items in an employee’s regular rate of pay.

EXAMPLES –

In summary, when an employee requests FFCRA leave, the employer will at that time need to determine the employee’s regular rate of pay for the paid FFCRA leave.