Dean, Frank

RIN Docket number 1215-AB13 Proposed FLSA Regulations New Proposed Regulatory language found at 29 CFR 778.114 (b)(1) uses the word approximately in two places. This is a carry over from the long-standing language found in that same section of the current regulation. However, I recommend that this regulatory change be used as an opportunity to eliminate that potentially misleading and confusing term. The overtime regulations make it clear that the calculation of statutorily mandated overtime is exacting. The use of the term approximately may provide confusion within the regulatory framework. Regulatory language found at 29 CFR 778.108 states in part “…Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.” I recommend that the example be changed to use amounts that arrive at an exact regular rate calculation and therefore permit the word approximately to be entirely eliminated from this section of the regulation. The following language is suggested: Proposed regulatory language found at 29 CFR 778.114(b)(1), second sentence – “If during the course of 4 weeks this employee works 37.5, 40, 48 and 50 hours, the regular hourly rate of pay in each of those weeks is $16.00, $15,00, 12.50 and 12.00, respectively.” Proposed regulatory language found at 29 CFR 778.114(b)(1), fourth sentence – “For the first week the employee is entitled to be paid $600 since the salary is due for whatever hours are worked – whether few or many; for the second week $600; for the third week $650 ($600 plus 8 hours at $6.25, or 40 hours at $12.50 plus 8 hours at $18.75); for the fourth week $660 ($600 plus 10 hours at $6.00, or 40 hours at $12.00 plus 10 hours at $18.00).” These recommended example sentences would eliminate the need for the word approximate and more appropriately support the exacting nature of the overtime requirements and at the same time would illustrate that the full salary is owed under a fluctuating workweek for a fixed salary agreement even on occasions where fewer than 40 hours may be worked.