Suppose you commonly reimburse employees for certain expenses like mileage, meals, or equipment. Suppose instead of paying them the usual rate of “x,” you decide to pay them significantly more, like maybe “4x” for those expenses. Can you do so and exclude those payments from the employee’s regular rate of pay if they work overtime?
No, you can’t.
Here’s why.
The Fair Labor Standards Act requires employers to pay non-exempt employees at least one and one-half times the “regular rate” at which the employee is employed for all hours worked after 40 hours in a workweek. That regular rate must include “all remuneration for employment paid to, or on behalf of, the employee,” subject to a few exceptions. One exception is for “reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of [their] employer’s interests and properly reimbursable by the employer,” as well as “other similar payments to an employee which are not made as compensation for [their] hours of employment.” However, these expense reimbursements must be legitimate, not inflated. Indeed, the FLSA regulations state that “only the actual or reasonably approximate amount of the expense is excludable from the regular rate. If the amount paid as ‘reimbursement’ is disproportionately large, the excess amount will be included in the regular rate.” Employers bear the burden of establishing that expense payments are eligible to be excluded from an employee’s regular rate of pay.
Imagine a situation in which an employer paid employees for expenses that they didn’t incur at all. It would almost seem like the employer was trying to get around paying wages to employees in an attempt to avoid having to include them in the regular rate of pay and, hence, artificially decrease overtime potential overtime exposure.
In an opinion letter released earlier this month, the U.S. Department of Labor confirmed that it would not tolerate these shenanigans and that only expenses actually incurred can be excludable from an employee’s regular rate of pay.
Put another way, where employees incur certain expenses on behalf of an employer for tools and equipment, and the employer provides reimbursement for those expenses, “only the actual or reasonably approximate amount of the expense is excludable from the regular rate.” Otherwise, “if the reimbursement payment is not reasonably approximate to the expenses the employee actually incurred, then the excess reimbursement payment must be included in the regular rate.”
Although the DOL won’t get into the minutiae of how an employer determines reasonably approximates actual expenses, mess around and find out.