The U.S. Department of Labor (DOL) recently issued two opinion letters. One of those letters clarified which reimbursement payments may be excluded from an employee’s “regular rate” when calculating overtime pay under the Fair Labor Standards Act (FLSA). The second explained that Family and Medical Leave Act (FMLA) leave may be used for participating in a clinical trial.

Expense Reimbursement Payments

In FLSA2024-01, the DOL responded to an inquiry over whether daily expense payments for tools and equipment may be excluded from an employee’s regular rate of pay. The opinion letter explained that, yes, reimbursement payments may be excluded from the regular rate if an employee incurred the expense but not under other circumstances. Employers may make reasonable approximations of expense amounts incurred, even if companies have made excessive expense payments, the opinion letter said.

A nonexempt employee must be paid overtime pay at no less than one and a half times the employee’s regular rate for time worked in excess of 40 hours in a workweek. Under the FLSA, the formula to compute the regular rate is: Total compensation in the workweek (except for statutory exclusions) divided by total hours worked in the workweek equals the regular rate for the workweek, the DOL notes in a fact sheet.

The opinion letter was composed in response to the representative of a company in the oil and gas industry that had employees who performed inspection and related services on pipelines....

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