PUBLIC LAW 106-202—MAY 18, 2000 114 STAT. 309 "(ii) made based upon the past performance (which may include any criteria) of one or more employees in a given period so long as the determination is in the sole discretion of the employer and not pursuant to any prior contract.". (b) EXTRA COMPENSATION.— Section 7(h) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(h)) is amended— (1) by striking "Extra" and inserting the following: "(2) Extra"; and (2) by inserting after the subsection designation the following: "(1) Except as provided in paragraph (2), sums excluded from the regular rate pursuant to subsection (e) shall not be creditable toward wages required under section 6 or overtime compensation required under this section.". (c) EFFECTIVE DATE. — The amendments made by this section 29 USC 207 note, shall take effect on the date that is 90 days after the date of enactment of this Act. (d) LIABILITY OF EMPLOYERS.—No employer shall be liable 29 USC 207 note. under the Fair Labor Standards Act of 1938 for any failure to include in an employee's regular rate (as defined for purposes of such Act) any income or value derived from employer-provided grants or rights obtained pursuant to any stock option, stock appreciation right, or employee stock purchase program if— (1) the grants or rights were obtained before the effective date described in subsection (c); (2) the grants or rights were obtained within the 12-month period beginning on the effective date described in subsection (c), so long as such program was in existence on the date of enactment of this Act and will require shareholder approval to modify such program to comply with section 7(e)(8) of the Fair Labor Standards Act of 1938 (as added by the amendments made by subsection (a)); or (3) such program is provided under a collective bargaining agreement that is in effect on the effective date described in subsection (c). (e) REGULATIONS. — The Secretary of Labor may promulgate 29 USC 207 note, such regulations as may be necessary to carry out the amendments made by this Act. Approved May 18, 2000. LEGISLATIVE HISTORY—S. 2323: CONGRESSIONAL RECORD, Vol 146 (2000): Apr. 12, considered and passed Senate. May 3, considered and passed House.
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