With the start of the new year, we all want to forget about everything that 2020 and COVID-19 imposed on us. Walmart, Inc., however, is facing a class action lawsuit related to COVID-19 sick pay that is sure to extend well into 2021 and beyond.
In the lawsuit, a class of employees allege that Walmart failed to accurately compensate employees for statutory COVID-19 paid sick leave. According to Walmart's court filings, there are at least 6,033 workers in the putative class and the potential recovery is estimated to be at least $7.6 million.
What did Walmart do wrong?
The lawsuit alleges that Walmart did not factor performance-based bonuses into the sick leave pay calculation. Instead, Walmart paid sick leave at each employee's base pay rate.
Are you calculating sick leave pay incorrectly?
In most sick leave jurisdictions and under the Families First Coronavirus Response Act (FFCRA), sick leave must be paid at the employee's "regular rate of pay." While many employers assume "regular rate of pay" means base rate, this assumption is incorrect. The term "regular rate of pay" means the weighted average of all rates and wages the employee earned during a set period, including nondiscretionary bonuses and commissions.
Conclusion
The class action filed against Walmart serves as an important reminder that employers must calculate the regular rate of pay correctly. As the federal FFCRA sunsets, new paid sick leave laws requiring employers to calculate the regular rate of pay are on the rise. Some states (such as Colorado, New York, New Jersey, and California) and municipalities (such as Philadelphia and Pittsburgh) have already passed new legislation.
Do you still have questions about paid sick leave or how to correctly calculate the "regular rate of pay"? Don't worry-we are here to help!
