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FLSA2008-12
December 1, 2008
Dear Name*:
This is in response to your request for an opinion regarding whether an employer
may exclude bonus payments from the regular rate of pay for overtime purposes
under section 7(e)(3) of the Fair Labor Standards Act (FLSA).*
It is our opinion that the bonuses may be excluded from the regular rate of
pay.
Your city decided to pay a $1,000 bonus to full-time emergency communications
operators employed since October 1, 2005. The bonus was in recognition of
the high stress level of the employees’ duties. Your city made no prior agreement
or promise to pay such a bonus, but the union, as the employees’ bargaining
agent, had to approve the bonus before the city could pay it. The parties
formalized the approval by signing the memorandum of understanding (MOU) on
December 14, 2005. The MOU subsequently became a part of the bargaining unit
contract and made provisions for future bonus payments. Your city paid the
first bonus on December 22, 2005. Your city is concerned that because it
actually paid the first bonus after signing the MOU, the bonus is no longer
“discretionary” under section 7(e)(3). You requested our view only with regard
to the first bonus payments and not subsequent bonus payments.
Under the FLSA, the regular rate of pay includes all remuneration for employment
paid to, or on behalf of, the employee, except payments specifically excluded
such as discretionary bonuses. See 29 U.S.C. § 207(e)(3).
In order for a bonus to qualify for exclusion
as a discretionary bonus under section 7(e)(3)(a) the employer must retain
discretion both as to the fact of payment and as to the amount until a
time quite close to the end of the period for which the bonus is paid.
The sum, if any, to be paid as a bonus is determined by the employer without
prior promise or agreement. The employee has no contract right, express
or implied, to any amount.
29
C.F.R. § 778.211(b).
Further, an employer may not exclude a bonus from the regular rate of pay
if it is paid “‘pursuant to any prior contract, agreement, or promise.’
For example, any bonus which is promised to employees upon hiring or which
is the result of collective bargaining would not be excluded from the regular
rate under this provision of the Act.” 29 C.F.R. § 778.211(c). We agree with you that the bonus here is accurately characterized
as discretionary, paid in recognition of the stress endured in the position.
Your city formally decided to pay a bonus after the events giving rise to
the payments already occurred —full-time employment as of a specific date.
Your city had discretion as to both the fact and the amount of payment by
solely deciding to pay the bonuses and the terms and amounts of the bonuses.
See 29 C.F.R. § 778.211(b). Neither the employees nor the union
could have compelled the city to decide to pay bonuses much less dictate their
amounts.
Moreover, based on the facts provided, you did not issue the bonuses pursuant
to the MOU, but rather used the agreement to formalize a decision previously
made. In a conversation with a member of the Wage and Hour Division staff,
you stated that the city approached the bargaining unit after deciding
to give the bonus and that the timing of the MOU was close enough to the “end
of the period for which the bonus [was] paid” to establish no advance expectation
of payment. Id. (“[I]f an employer announces to his employees in January
that he intends to pay them a bonus in June, he has thereby abandoned his
discretion.”). Based on the timing of the MOU and the payment of the first
bonus, it appears your city paid the bonus “without prior promise or agreement”
and that the signing of the MOU was merely perfunctory. Id. It is
our opinion that the bonus your city provided to its operators was discretionary
and excludable from the regular rate of pay under section 7(e)(3).
This opinion is based exclusively on the facts and circumstances described
in your request and is given based on your representation, express or implied,
that you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your letter
might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issues addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department
of Labor.
We trust that this letter is
responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
*
Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
*
Unless otherwise noted, any statutes, regulations, opinion letters, or other
interpretive material cited in this letter can be found at www.wagehour.dol.gov.
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