An employer must include premium emergency pay in the regular pay rate when calculating an employee’s overtime pay, according to a September 30 opinion letter from DOL’s Wage and Hour Division.
The letter responds to a firefighter asking whether “emergency pay” —premium pay for working during a disaster or declared emergency — must be included in the regular rate.
The Fair Labor Standards Act requires an employer to include all components of pay in the regular rate unless a statutory exclusion applies. Provided additional statutory criteria are met, the law excludes premium pay for work:
- Of more than either 8 hours in a day or 40 in a workweek;
- On Saturdays, Sundays, holidays, or regular days of rest, or the sixth or seventh day of the workweek; or
- Outside the normal or regular workday or workweek established by contract.
DOL’s opinion letter states that the firefighters’ emergency pay didn’t fit into any of these exclusions.
The Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, will review regular rate principles in its course on Fundamentals of Wage and Hour Compliance. CWC members can read more here.