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Federal Register/Vol. 87, No. 18/Thursday, January 27, 2022/Rules and Regulations 4399
<br /> (or grantee)uses SLFRF funds to thresholds for permitting or reporting on final rule for recipients because
<br /> provide premium pay to an employee premium pay. Treasury understands that most
<br /> and the pay or grant would increase a Finally,there was also some employers,public and private, are
<br /> worker's total pay above 150 percent of uncertainty as to the threshold and the familiar with and are routinely required
<br /> their residing state or county's average requirement for written justification. to apply the FLSA.
<br /> annual wage for all occupations,as Some commenters interpreted the With this addition,the final rule
<br /> defined by the BLS Occupational threshold as a hard cap on who was provides that premium pay is
<br /> Employment and Wage Statistics, eligible for premium pay,which is not responsive to eligible workers
<br /> whichever is higher, on an annual basis, the case.Relatedly, some commenters performing essential work during the
<br /> then the recipient must provide, also requested further guidance on what public health emergency if each eligible
<br /> whether for themselves or on behalf of recipients should include in the written worker who receives premium pay falls
<br /> a grantee,written justification to justification submitted to the Secretary. into one of three categories: (1) The
<br /> Treasury detailing how the award Treasury Response:The final rule worker's pay is below the wage
<br /> responds to eligible workers performing
<br /> makes some modifications to the threshold (2)the worker is not exempt
<br /> essential work. determination of when premium pay from the FLSA overtime provisions, or
<br /> Public Comment:Treasury received "responds to" eligible workers (3)the recipient has submitted a written
<br /> numerous comments on the wage performing essential work during the justification to Treasury.
<br /> threshold and the written justification public health emergency.Under the The final rule makes it clear that
<br /> requirement. Several commenters interim final rule,premium pay was written justification to Treasury is not
<br /> supported the threshold as a way to responsive if either the workers pay necessary with respect to eligible
<br /> was below a wage threshold or,if the workers whose pay is less than the wage
<br /> encourage recipients to target premium pay was above a wage threshold,the threshold. Nor is written justification
<br /> pay to lower-income, eligible workers. recipient submitted written justification necessary with respect to eligible
<br /> Some commenters even asked Treasury to Treasury explaining how the workers who are not exempt from the
<br /> to make the wage threshold a firm premium pay was responsive. The final FLSA overtime provisions. The written
<br /> restriction, above which an eligible rule retains these two means of justification is only necessary if the
<br /> worker could not receive premium pay. establishing premium pay in response to worker's pay(with or without the
<br /> Others agreed with the threshold but workers performing essential work and premium) exceeds the threshold, and
<br /> also requested flexibility to use existing adds an additional means of the worker is exempt from the FLSA
<br /> worker classifications as an demonstrating that premium pay is overtime provisions. The final rule also
<br /> administratively simple way to identify responsive. Under the final rule,a clarifies that a worker's pay exceeds the
<br /> workers for whom premium pay would recipient may also show that premium threshold if either the premium pay
<br /> be responsive. For instance,a few pay is responsive by demonstrating that increases the worker's total pay above
<br /> commenters asked Treasury to allow the eligible worker receiving premium the wage threshold or the worker's total
<br /> recipients or grantees to presume that pay is not exempt from the FLSA pay was already above the threshold,
<br /> premium pay"responds to" eligible overtime provisions.267 This change will before receiving premium pay.
<br /> workers performing essential work expand the number of workers eligible Treasury has also updated the final
<br /> when it is provided to employees who to receive premium pay 268 and does not rule to clarify that written justification
<br /> are not exempt from the Fair Labor require recipients to provide written means a brief,written narrative
<br /> Standards Act(FLSA) overtime justification to Treasury regarding the justification of how the premium pay or
<br /> provisions—a test that employers are workers who are not exempt from the grant is responsive to workers
<br /> routinely required to apply.266 FLSA overtime provisions,making the performing essential work during the
<br /> In contrast, several commenters program easier to administer for public health emergency.This could
<br /> disagreed with the threshold and the recipients.Incorporating this change include a description of the essential
<br /> requirement for written justification.A further simplifies application of the workers' duties,health or financial risks
<br /> few commenters thought the threshold faced due to COVID-19, and why the
<br /> was too low to capture employees in 267 Department of Labor,Overtime Pay,https:// recipient determined that the premium
<br /> certain critical infrastructure sectors www.dol.gov/agencies/whd/overtime;see also 29 pay was responsive despite the workers'
<br /> (e.g.,public safety,waste collection) and U.S.C.207. higher income.
<br /> that it did not sufficient) account for 268 Among workers that report working overtime, Recipients should refer to SLFRF
<br /> y roughly 41-44 percent of workers earn above
<br /> the variance in economic need across $50,000 per year,which is slightly less than the program reporting guidance,user
<br /> different geographic areas and family national average annual wage for all employees guides, and other documentation for
<br /> structures. Some smaller communities according to the Bureau of Labor Statistics' further guidance on the form and
<br /> arg
<br /> ued d that the threshold was difficult Occupational Employment and Wage Statistics, content of the written justification.
<br /> g available at https://www.bls.gov/oes/.See also U.S.
<br /> to calculate and apply. Census Bureau,Basic Monthly CPS,January 2019 Treasury anticipates that recipients will
<br /> Other commenters proposed revisions through December 2019,available at https:// easily be able to satisfy the justification
<br /> for how the threshold is calculated. For www.census.gov/data/datasets/time-series/demo/ requirement for front-line workers,like
<br /> cps/cps-basic.html.Notes:Annual earnings reflect nurses and hospital staff.
<br /> instance,a few commenters asked weekly wages multiplied by 52.Usual weekly p
<br /> Treasuryto alternative earnings are computed by BLS to include earnings
<br /> o consider using ernave from work such as tips,overtime,regular wages, Definition of Premium Pay
<br /> earnings measures such as median income. Similarly,another commenter etc.,but not non-labor sources of income such as The statute defines premium pay as
<br /> government transfers and capital gains.Pre- "an amount of up to$13 per hour . . . ,
<br /> asked Treasury to consider the incomes overtime earnings are computed by taking the in addition to wages or remuneration
<br /> of workers with different levels of difference of usual weekly earnings and earnings
<br /> seniority in developing any income from overtime last week and multiplying by 52. the eligible worker otherwise receives,
<br /> Note,some sources multiply weekly earnings by 50 for all work performed by the eligible
<br /> instead of 52 to account for unpaid time off and worker during the COVID-19 public
<br /> ass See generally 29 U.S.C.207(a);U.S. holidays,so these figures may be slightly larger health emergency. Such amount may
<br /> Department of Labor,Overtime Pay Requirements of than those reported elsewhere.Either assumption
<br /> the FLSA(Fact Sheet No.23),https://www.dol.govl may overestimate earnings if workers do not work not exceed$25,000 with respect to any
<br /> agencies/whd/fact-sheets/23 flsa-overtime-pay. year-round. single eligible worker."The interim
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