12.2

Facility costs

Why an employer must document what board, lodging, or other facilities actually cost

An employer who credits “board, lodging, or other facilities” toward wages under section 3(m) of the Act — the Fair Labor Standards Act provision that lets an employer count the cost of board, lodging, or other facilities toward the wages it owes — or who furnishes them to employees as an addition to wages, must maintain records substantiating the cost of furnishing each class of facility: a category of similar items furnished to employees, such as housing, fuel, or merchandise sold through a company store or commissary. This sits alongside the payroll records covered in Chapter 11, but it is its own record class, tied specifically to what a facility actually costs to provide. The records must include itemized accounts showing the nature and amount of the actual expenditures that go into computing “reasonable cost” — a cost standard defined in the Department of Labor’s facilities regulations at 29 CFR Part 531, not detailed here. For capital assets like employer-provided housing, the records must also include the data needed to compute depreciated investment — the date of acquisition or construction, original cost, depreciation rate, and accumulated depreciation, figures a bookkeeper or accountant can typically supply. Where merchandise is held for sale to employees, the records must contain the data from which the average net investment in inventory can be determined — another figure a bookkeeper or accountant can typically supply.

None of this requires per-employee or per-unit precision. An employer furnishing housing to a workforce may keep combined cost records for the whole group of houses rather than a separate ledger for each one, and costs for similar or closely related facilities may likewise be shown together. What combined records must add, though, is the income side: the gross income derived from each class of facility — gross rentals for housing, total sales through a company store, total receipts from fuel sales — so cost and return can both be checked. No particular degree of itemization is fixed, but the detail has to match good accounting practice and be enough for the Wage and Hour Division to verify each expenditure against the underlying basic records. Workweek tracking of facility additions or deductions is required in two situations: when they push cash wages below the applicable minimum wage in a workweek, or when the employee works in excess of the maximum-hours standard applicable to that employee (see Chapter 1) in that workweek and either the additions are counted as part of wages or the deductions are claimed as a section 3(m) credit. An employee who is not subject to the Act’s overtime provisions in a given workweek and who still receives at least the statutory minimum wage in cash for all hours worked that week falls outside every record this section specifies, from the itemized cost-substantiation accounts described above to the workweek-level tracking just described.

The same actual-cost principle carries over — in reverse — to the facilities credit an employer might try to use toward an exempt employee’s salary. As covered in Chapter 5, the salary basis test at § 541.602 requires a predetermined amount that is not subject to reduction because of variations in the quality or quantity of the work performed. Separately, the minimum salary required for exemption must be paid “exclusive of” board, lodging, or other facilities; § 541.606 defines that phrase to mean “free and clear” — independent of any credit for non-cash items an employer provides. The costs an employer incurs to furnish board, lodging, or other facilities — however well documented — cannot count toward the minimum salary amount. The employer and employee may still transact separately over housing, meals, or similar items, but those costs never factor into whether the required minimum salary was actually paid.

Key terms

board, lodging, or other facilitiesreasonable costclass of facilitysection 3(m) creditexclusive of board, lodging, or other facilities