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March 2, 2009
Dear Name*:
Enclosed is the response to
your request for an opinion letter signed by the then Acting Wage and Hour Administrator
Alexander J. Passantino on January 16, 2009 and designated as Wage and Hour
Opinion Letter FLSA2009-30. It does not appear that this response was placed
in the mail for delivery to you after it was signed. In any event, we have
decided to withdraw it for further consideration by the Wage and Hour
Division. We will provide a further response in the near future.
The enclosed opinion letter,
and this withdrawal, are issued as official rulings of the Wage and Hour
Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259. See
29
C.F.R. §§ 790.17(d), 790.19;
Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir.
1990). Wage and Hour Opinion Letter FLSA2009-30 is withdrawn and may not be
relied upon as a statement of agency policy.
Sincerely,
John L. McKeon
Deputy Administrator for Enforcement
FLSA2009-30
This Opinion Letter is withdrawn. January 16, 2009
Dear Name*:
This is in response to your request for an opinion regarding
whether certain job bonuses must be included in the regular rate under section
7(e) of the Fair Labor Standards Act (FLSA).[1]
Based on the information provided, it is our opinion that the job bonuses
should be included in the regular rate.
Your client, an oilfield services company, provides
cementing, acidizing, fracturing, sand control, and other services for drilling
and completion of oil and gas wells and remedial work on existing wells in the
petroleum industry. The company employs non-exempt equipment operators who are
paid an hourly wage above the minimum wage and overtime wages for hours worked
in excess of 40 hours per week. Generally, equipment operators operate
commercial vehicles, such as tractor trailers, semi trucks, and/or tanker
trucks on a daily basis between district offices and customers’ oil and gas
well locations to deliver company products, service tools, and equipment. Equipment
operators generally load and unload the vehicle; participate in rigging the
equipment at the customer’s worksite, such as connecting hoses and high
pressure pipes to equipment at the customer’s wellhead; and operate the
equipment for the desired service at the well site.
The company wishes to pay its equipment operators, in
addition to hourly wages, a “job bonus,” consisting of a flat dollar amount per
day (e.g., $100.00 for each day worked). The “job bonus” would be paid
for each day worked, and does not appear to be conditioned on any other
factor. You ask whether such a bonus should be included in the regular rate.
With
limited exceptions, the FLSA provides that the “regular rate” includes “all
remuneration for employment paid to, or on behalf of, the employee.” 29 U.S.C.
§ 207(e). The proposed job bonus meets none of the exceptions for being
excluded from an employee’s regular rate of pay and, therefore, must be
included in the regular rate.[2]
See 29 U.S.C. § 207(e)(1) – (7).
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).
[1]
Unless otherwise noted, any statutes, regulations, opinion letters, or other
interpretive material cited in this letter can be found at
www.wagehour.dol.gov.
[2] In reaching this conclusion, we express no opinion as
to whether the equipment operators are eligible for any of the minimum wage
and/or overtime exemptions provided by the Act, including, but not limited to,
the exemption provided under 29 U.S.C. § 213(b)(1).
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