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The Use of Factoring When Determining Hourly Commensurate Wage Rates Under FLSA Section 14(c)

When determining the worker with a disability’s productivity rating, the employer must arrive at that rating by evaluating the worker only on the job components actually performed.

The work measurement method of breaking down a job into its components, and then rating the worker on each individual component, is referred to as factoring. The employer may only rate the worker on the components actually performed and may not penalize a worker because he or she fails to perform, or is incapable of performing, a certain component(s) of the job.

Factoring is not an acceptable work sampling method when the employer rates a worker on job components the employee cannot or will not perform.

For example, a job description may require that a groundskeeper perform the following tasks: picking up trash, sweeping the sidewalk, and operating a power-driven lawn mower. If the employer hires a worker with a disability who can and does pick up trash and sweep the sidewalk, but, for whatever reason, does not operate the lawn mower, the employer must rate that employee only on picking up trash and sweeping the sidewalk.

Some employers may attempt to assign a rating of 33 1/3 per cent to each of the three components and then, in order to arrive at a total score, add the ratings awarded the employee for his or her performance of each of the three components. In this example, the employer would be improperly “factoring” if he or she included a rating of “zero” for operating the lawn mower in the employee’s rating. Such factoring would significantly reduce the employee’s rating, and thus his or her commensurate wages for the work he or she actually performs.

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FLSA Section 14(c) Advisor | Wage and Hour Division