DOL Paid Leave Guidance Finally Hints at How to Pay FLSA-Exempt Employees

The Department of Labor's Wage and Hour Division has added additional FAQs to its guidance related to the new leave mandates enacted as part of the Families First Coronavirus Response Act. Both the law passed by Congress and the regulations promulgated by DOL focus in detail on how to pay employees who are nonexempt under the FLSA -- key to determining the amount of paid leave is a concept called the "regular rate."

However, neither the law nor the regulations address how to pay employees who are exempt from the FLSA's overtime provisions. Among the challenges in calculating pay for exempt employees is the fact that employers may not have tracked these emplyees' hours at all and because these employees do not have a "regular rate" as that term is used under the FLSA.

While DOL's new FAQ do not expressly mention how pay should be calculated for exempt employees, they do address how to calculate pay for salaried workers and when hours vary. New FAQ 83 addresses the computation of the regular rate for employees paid a fixed salary each week. While most of the FAQ is written as if it is discussing application of the pay rules to salaried non-exempt workers, at the end it explicitly states that "if you lack records for the number of hours your employee worked, you should use a reasonable estimate."

Thus, while it doesn't say so explicitly, it seems like DOL is finally providing some guidance on how to calculate pay for exempt workers -- and also some flexibility by requiring employers to use a "reasonable estimate." 

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