Everyone knows (or should know) that nonexempt employees must be paid at least time-and-one-half their “regular rate” of pay for all hours worked over 40 in a workweek.  What everyone does not always know is what goes into the calculation of a worker’s “regular rate”.  Many incorrectly assume that the regular rate is nothing more than an employee’s normal hourly rate – failing to realize that some other types of compensation, such as many types of bonuses, should be included.  When this additional compensation is factored in, the employee’s overtime pay rate goes up, explaining some employer’s desire to overlook this issue.

Recent settlements include:

  • $3.5 million paid by Delta to resolve a class action that alleged it incorrectly calculated overtime pay under California labor laws by failing to include shift differential payments, “Shared Rewards” bonuses, profit-sharing payments and the fair market value of airline passes it provided.
  • A Pennsylvania Healthcare service charged with failing to include workers’ shift bonuses when calculating their overtime rates; and
  • A Connecticut based lighting manufacturer paying over $138,000 to  employees in Georgia who claimed it violated the overtime laws by failing to include shift differentials when computing overtime pay – instead basing their calculation only on employees’ base hourly rates.  

The federal wage and hour laws state that, when calculating overtime pay, non-discretionary bonuses must be included in the regular rate of pay. According to the DOL, “non-discretionary bonuses include those that are announced to employees to encourage them to work more steadily, rapidly or efficiently, and bonuses designed to encourage employees to remain with a facility.”  When a particular bonus is offered on a regular basis and employees come to recognize and expect it, the bonus is most likely nondiscretionary.  Under this definition, not many bonuses will qualify as discretionary, permitting them to legally be excluded from the overtime pay rate calculation.

On the other hand, discretionary bonuses are typically payments that workers do not have good reason to expect and that are made at the sole discretion of the employer.

The failure to include the amount of production-based bonuses,  incentive-based compensation, retention bonuses and  other types of similar compensation when calculating an employee’s overtime rate of pay are common errors, particularly among health care, financial services, retail and oilfield employers.   Such failure to calculate and pay overtime wages correctly ends up depriving workers of substantial amounts of hard-earned overtime pay and unjustly enriching the employer.

Case in point: A Texas company provides oil well pump and fracking services and  offers two types of bonuses – a “stage” bonus and a performance bonus. Must either or both of these bonus payments be included in the regular rate and overtime pay calculation?

Because fracking of a well occurs in identifiable “stages,” the company offered a bonus for each stage completed. However, the details of the timing and amount of the stage bonuses were never put into writing. This led to a finding that there was not sufficient evidence that the bonus was non-discretionary and that the stage bonus did not have to be included in the regular rate calculation.

To the contrary, the performance bonus was formalized and provided to employees in a written policy at the time of hire. Although the policy clearly indicated the bonus was “not to be expected, it is to be earned” and that if an employee was “here just to get a paycheck, and get by with as little work as possible, don’t expect to get a performance bonus,” the policy spelled out specific criteria by which employees would be judged with respect to bonus consideration and a pay scale, of anywhere from 50 cents to $1.00 per hour depending on employee class, for such occasions when a bonus was deemed to have been earned.  The Court held that the performance bonuses should have been included in the regular rate calculation (factored into overtime pay calculation) because, even though the company retained discretion as to whether the bonus would be paid, it did not retain discretion as to how much the bonus would be.

Non-exempt employees need to look carefully at all forms of compensation they receive, regardless of how it is labeled (bonus, incentive, per diem, etc.), to determine whether they should be included in or excluded from the regular rate of pay on which their overtime rate is based.

So, how do you calculate overtime when a bonus is received? 

The following is an example of how a production bonus would be taken into account:

In order to encourage and motivate employees to be more efficient, ACME pays its hourly workers a $2,000 bonus every 6 months if certain goals are met.  This bonus must be included in determining the regular rate of pay for overtime hours worked in the weeks covered by the bonus period.  Since this bonus was actually earned over 6 months or 26 weeks, the additional amount added to each week in which overtime was worked is $76.92 ($2,000 ÷ 26 weeks).  So, for each week in which the employee worked overtime during the 26 week period, the increase in their regular rate would equal $76.92 divided by the number of hours they actually worked during the week.

Because of the strict time limits imposed by the overtime pay laws, procrastination can be costly.  Do not rely on your boss or Human Resources for this critical information.   If you have any doubts as to your entitlement to overtime, contact the overtime pay experts at The Lore Law Firm for a free and confidential review.

Call 1-866-559-0400, email  [email protected] or  submit your information using our convenient  Case Evaluation  form for a FREE and CONFIDENTIAL review of your circumstances, because time is money.