United States: "Fixed Salaries" And FLSA Overtime: Another Misguidance Alert

Employers designing pay plans for employees who are or will be non-exempt should take care not to be misled by murky U.S. Department of Labor " guidance" published in connection with the coming federal Fair Labor Standards Act exemption changes.

Yet another USDOL example appears to be misguiding the public.  This time, it involves paying a "fixed salary" as straight-time pay for hours worked up to a targeted over-40-hours total.

Page 6 of USDOL's publication says that an employer may:

◊       Establish a "fixed salary" as straight-time wages for up to some specified number of hours worked over 40 hours in a workweek, and

◊       Pay half-time overtime premium for whatever hours are worked between 40 and that specified number, and

◊       Pay additional time-and-one-half overtime compensation for hours beyond the specified number.

So far, so good.

Half-Baked Guidance

USDOL's illustrative pay plan for a hypothetical Jamie rests upon a weekly "fixed salary" of $850 paid as straight-time wages to compensate "a 50 hour workweek".  "Because the salary is for 50 hours per week", USDOL says, "Jamie's regular rate is $17 ($850/50)."

Consequently, the example goes, for "a normal 50 hour week", Jamie would be due "additional half-time overtime premium for the 10 hours of overtime ($8.50/hour)."  "If Jamie worked more than 50 hours in a [work]week", then "the employer would also owe overtime compensation at . . . ($17 × 1.5) for hours beyond 50 . . .."

But what if Jamie worked fewer than 50 hours in a workweek, such as 45?  Is Jamie's regular rate still $17?  Does an employer comply with the FLSA by paying for those five overtime hours at ($17 ÷ 2) = $8.50 per hour?  USDOL's failure to address this, taken in conjunction with its statements that "Jamie's regular rate is $17" "[b]ecause the salary is for 50 hours per week", is leading some to the mistaken conclusion that basing Jamie's overtime pay on the $17 rate even in workweeks with fewer than 50 hours worked satisfies the FLSA's overtime requirement.  It does not.

Fewer Hours Worked = Higher Regular Rate

Jamie's salary might be "fixed", but Jamie's regular rate is not "fixed".  Generally, the regular rate is figured by dividing an employee's workweek wages by the hours the employee actually worked in that workweek for which the compensation was paid.  With few exceptions, the regular rate of an employee paid a fixed amount for varying numbers of overtime hours worked must also vary, even if the salary represents straight-time compensation for up to some set number over 40 in a workweek (no matter how that number is selected).

When Jamie works 45 hours in a workweek, that week's salary is paid to compensate 45 hours.  This means that Jamie's salary produces a regular rate for that workweek of approximately $18.89 per hour ($850 ÷ 45 hrs.).  The FLSA overtime premium due for that workweek is approximately $47.22 [($850 ÷ 45 hrs.) × ˝ × 5 OT hrs.].  See, e.g., 29 C.F.R. § 778.325.  If instead management pays only $42.50 [($17 ÷ 2) × (5 OT hrs.)], then it has not fully complied with the FLSA's overtime requirement.

What About A "Fixed" Hourly Rate?

Naturally, the analysis is different for an employee supposedly paid a "salary" but who is in truth paid at an hourly rate.  Although USDOL's overtime interpretation at Section 778.325 (linked above) is no model of clarity, a careful reading demonstrates that this is so.

USDOL says there that, if the parties understand what it calls a "salary" to compensate a fixed workweek of 50 hours, then the employee's regular rate "in all weeks" equals the "salary" divided by 50 hours.  However, in the next sentence USDOL states its assumption that, if the employee works fewer than 50 hours in a workweek, "deductions" are made at a that same rate "for the hours not worked."

This reveals that the hypothetical employee is not paid a "salary" at all.  Instead, the employee is paid at an hourly rate that produces straight-time wages totaling the purported "salary" if he or she works exactly 50 hours in a workweek.  Cf. 29 C.F.R. § 778.306 (reducing a "salary" for each unworked hour in short workweeks indicates that the employee is paid at an hourly rate).

In this setting, then, the employee's hourly rate is his or her regular rate (unless the employee also receives some other payment that increases the regular rate).  But nothing in USDOL's example indicates that Jamie would be paid less for working fewer than 50 hours.

The Bottom Line

Incomplete or over-simplified USDOL examples do not supplant bedrock FLSA principles governing pay for non-exempt employees.

Proposed fixed-salary plans for such employees, whether predicated upon constant weekly wages, "guaranteed hours", a combination, or some other structure, should always be carefully evaluated in advance.  Unless a narrow FLSA exception applies (such as a valid "Belo" or "basic rate" arrangement), employers should recognize that the FLSA overtime regular rate will vary as the overtime hours worked in a workweek vary.

As always, employers should also take into account the requirements and limitations of other jurisdictions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.