The Regular-Rate Reconstruction: Plaintiff-Side FLSA Damages Modeling After the 2026 Bonus Rulings

Don J. Foty, Founding Partner | Foty Law Group

Don Foty is an experienced trial and appellate lawyer that specializes in representing workers in class and collective action lawsuits. He is considered an industry expert on wage and hour matters, including matters pertaining to the Fair Labor Standards Act. He has served as class counsel in over 100 wage and hour class actions and/or collective actions across the country.

• Education & Credentials

He attended The University of Texas at Austin where he studied finance and was admitted into the Business Honors Program. After graduating from The University of Texas at Austin, he attended the University of Houston Law Center.

Admitted: State Bar of Texas; U.S. Court of Appeals for the Fifth and Seventh Circuits; U.S. Court of Federal Claims; U.S. District Courts for the Northern, Southern, Eastern, and Western Districts of Texas, the District of Colorado, the District of North Dakota, the Northern, Southern, and Central Districts of Illinois, the District of Maryland, the Eastern District of Michigan, the District of New Mexico, the Western District of Oklahoma, and the Northern District of Ohio.

• Recognition & Leadership

Mr. Foty has been recognized as one of the top 100 civil trial lawyers in the U.S. by the National Trial Lawyers Association, one of the top 100 lawyers in the U.S. in employment law by the National Advocates, and as a “Super Lawyer” in Texas by the Super Lawyers publication.

• Professional Involvement

Mr. Foty writes and presents on wage and hour law. He has authored articles on Fair Labor Standards Act topics for the American Bar Association, the Houston Bar Association, and Houston Lawyer Magazine, and has presented to the Houston Bar Association on FLSA matters. Local and national news organizations interview him regularly on subjects related to the civil justice system, and his cases have been covered in the national media.

• Experience

For 20 years, he has represented workers in various unpaid wage disputes, including cases involving unpaid pre- and post-shift screenings, tip credit disputes, overtime misclassification disputes, regular rate miscalculation claims, independent contractor misclassification disputes, claims for compensation for working off-the-clock, fluctuating workweek disputes, claims for unpaid meal periods, and claims for unpaid waiting and travel time, amongst other unpaid wage claims.

In 2025 and 2026, he successfully prevailed before the Illinois Supreme Court and the Nevada Supreme Court in a pair of landmark decisions against Amazon.  Johnson v. Amazon.com Servs., LLC, 2026 IL 132016 (Mar. 19, 2026); Malloy v. Amazon.com Servs., LLC, 578 P.3d 634 (Oct. 30, 2025).

Sarah R. Schalman-Bergen, Partner | Lichten & Liss-Riordan P.C.

Sarah R. Schalman-Bergen is a partner at Lichten & Liss-Riordan P.C., who has dedicated her career to creating systemic change for workers and individuals who are not being treated fairly. She has secured numerous significant settlements for the workers she represents, totaling well over $100 million.

• Education & Credentials

Sarah earned a J.D., cum laude, from Harvard Law School in 2007 and a B.A., summa cum laude, from Tufts University in 2001, and has been a member of the Bar of Pennsylvania since 2007. She is admitted to practice before the U.S. Supreme Court; the U.S. Courts of Appeals for the Third, Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits; the U.S. District Courts for the Eastern, Middle, and Western Districts of Pennsylvania, the District of Colorado, the Eastern and Western Districts of Arkansas, the Northern District of New York, the Northern District of Illinois, the Southern District of Indiana, the Northern District of Ohio, the Eastern District of Michigan, the Western District of Tennessee, the Southern, Eastern, and Western Districts of Texas, and the District of Nebraska; and the U.S. Bankruptcy Court for the Eastern District of Pennsylvania.

• Recognition & Leadership

Sarah conducts her practice according to the highest ethical standards, and has received high judicial praise, including being described as “ethical, talented, and motivated to help hard working men and women” and “some of the finest legal representation in the nation.”

Sarah routinely speaks at conferences on issues relating to workers’ rights. She currently serves on Cornell’s ILR-Hotel School CIHLER Advisory Board, and is a Board Member of the Keystone Research Center. Sarah was named a 2020 Pennsylvania Super Lawyer, after being named as a Rising Star in every year over the prior decade. In 2021, she was named in Best Lawyers in America. In 2015, she was honored as a “Lawyer on the Fast Track” by The Legal Intelligencer.

• Professional Involvement

Sarah works in partnership and routinely co-counsels with public interest law firms to lend expertise to their mission in litigation. She has served as volunteer of counsel to the AIDS Law Project of Pennsylvania for more than a decade, litigating discrimination and HIV-confidentiality cases. Sarah was honored for this work as an “Unsung Hero” by the Legal Intelligencer, Pennsylvania’s daily law journal.

• Experience

While representing workers in all types of industries, Sarah has successfully challenged unlawful business practices involving last-mile logistics companies, cable installation companies, home health aide companies, meat and poultry plants, landscaping companies, in white collar jobs, and in the government. This litigation has resulted both in payment of back wages and in practice changes by the companies.

Prior to joining the Firm, Sarah was a partner at a plaintiff-side class action law firm, where she served as co-chair of the firm’s employment rights practice group. She has also practiced in the litigation department

SESSION 1 – Rebuilding the Regular Rate from Pay Records After the DOL’s 2026 Bonus Letters | 2:30pm – 3:30pm

This session teaches plaintiff-side attorneys how to reconstruct the FLSA regular rate using pay records, bonus plan documents, and the DOL’s January and May 2026 opinion letters as both analytical frameworks and evidentiary tools. Attendees will learn the mechanical four-step audit methodology for identifying improperly excluded compensation, allocating periodic bonuses workweek-by-workweek, and computing the correct overtime premium. By the end of the session, attorneys will be able to identify the most common employer miscalculations that generate viable FLSA claims, structure discovery demands around recordkeeping obligations, and apply the circuit-specific burden-of-proof framework to their cases.

BREAK | 3:30pm – 3:40pm

SESSION 2 – Building the FLSA Damages Model That Survives Settlement Scrutiny and the Fee Petition | 3:40pm – 4:40pm

This session teaches plaintiff-side FLSA practitioners how to construct a week-by-week damages model that performs under two sequential stress tests: judicial settlement-fairness review and the fee petition. Attorneys will learn how the 2025 DOL policy shifts—including FAB 2025-3 and the revived PAID program—alter the damages ceiling, how to present scenario-based liquidated-damages ranges at mediation, and how fee-petition arithmetic must be wired into the damages model from day one.

Attendees leave able to build a defensible spreadsheet, identify collective-wide extrapolation risks, and structure their litigation file so the lodestar cross-check does not unwind the recovery.