[author: Michael Cardman, XpertHR Legal Editor]
Employers are free to change the workweek, even if it reduces the amount of overtime to which employees are entitled, a federal appeals court has held.
The Fair Labor Standards Act typically requires that employees be paid overtime for any hours worked beyond 40 in a "workweek," a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. The workweek does not need to coincide with the calendar week. The employer may choose the day and time the workweek begins. It may begin on any day and at any hour of the day.
In Abshire v. Redland Energy Servs., +2012 U.S. App. LEXIS 20977 (8th Cir. 2012), the employer changed the workweek for some of its employees from Tuesday-to-Monday to Sunday-to-Saturday. This reduced the employees' overtime hours.
The employees sued, claiming the reduction in overtime hours violated +29 C.F.R. § 778.105, which states that any changes to the workweek must be intended to be permanent and must not be designed to evade the overtime requirements of the FLSA. A workweek change intended to reduce hours of overtime earned is contrary to the purposes of the FLSA's overtime requirements and is therefore "designed to evade" those requirements, they argued.
The 8th U.S. Circuit Court of Appeals disagreed, saying the plaintiffs' "assumption that an original purpose of the FLSA was to maximize the payment of overtime rates is contrary to more contemporary authority." Instead, the original purpose of the FLSA was to distribute available work among more employees, thereby alleviating unemployment. "Thus, an employer's effort to reduce its payroll expense is not contrary to the FLSA's purpose," the ruling concludes.
The Abshire ruling offers employers operating in the jurisdiction of the 8th Circuit -- which comprises Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota -- solid precedent for doing the same.