Given the daily changing legal landscape, we strongly encourage employers to reach out to Raimondo & Associates with questions regarding specific situations. We are closely monitoring these developments. Because of these frequent developments, and the need to adapt the general guidance below to specific circumstances, employers should consult counsel regarding specific circumstances.

At a general level, the legal rules and guidance we summarize below should not be applied in a manner that would prevent employers from taking reasonable, common-sense steps to protect the health and safety of employees, customers, vendors and their communities. There are many nuances and fact-specific elements that make individualized legal counsel on these questions of critical importance.

Q: How do I calculate any employee’s regular rate of pay for purposes of the FFCRA if the employee has a daily fluctuating rate of pay? 

For purposes of the FFCRA, the regular rate of pay used to calculate an employee’s paid leave is the average of their regular rate over a period of up to six months prior to the date on which the employee takes leave. If the employee has not worked for the employer for six months, the regular rate used to calculate the paid leave is the average of the employee’s regular rate of pay for each week they have worked for the employer.

If the employee is paid with commissions, tips, or piece rates, these amounts must be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

Employers can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.