News & Analysis as of

Fluctuating Workweek

Nevada Labor Commissioner Advises that Employers May Compensate Certain Employees Under Fluctuating Work Week Method

by Littler on

On May 25, 2017, the Nevada Labor Commissioner posted an Advisory Opinion stating that the fluctuating work week method (FWW) may be used to compensate certain nonexempt employees. The Advisory Opinion stated the FWW method...more

Health Care E-Note - August 2016

by Burr & Forman on

The Alabama Natural Death Act contains the provisions on how an individual may plan for end-of-life decisions. Specifically, it outlines the requirements for a valid Advanced Directive and the removal and withdrawal of life...more

The Fluctuating Workweek Approach to Compensation – It Could Save You Money!

by Foley & Lardner LLP on

With the new, increased salary requirements set to take effect later this year for exempt employees, many employers are asking how they might reduce their overtime obligations. One possible approach is the fluctuating...more

Think You Are Exempt? New FLSA Salary Thresholds Affect California Employers, Too.

by Seyfarth Shaw LLP on

Seyfarth Synopsis: Changes to the FLSA regulations increasing the minimum weekly salary for exempt employees will impact California employees who currently are being paid less than $47,476 per year. Wise employers will start...more

DOL’s Increased Salary Test: What Employers Need to Know

by Foley & Lardner LLP on

For months, employers have been anxiously awaiting the Department of Labor’s (DOL’s) final rule on exemptions from overtime under the Fair Labor Standards Act (FLSA) and wondering whether the DOL would pass the rule as...more

First Circuit Approves Use of FWW Method for Pay That Varies Due to Performance-Based Commissions

The First Circuit Court of Appeals recently affirmed a lower court’s decision that an employer may use the fluctuating workweek method to calculate overtime pay rates even when an employee’s weekly pay varies because of...more

Affirming Common Sense: Appeals Court Rejects Plaintiff’s “Two Rights Make A Wrong” Theory Involving Fluctuating Workweek Method

by Seyfarth Shaw LLP on

The U.S. Court of Appeals for the First Circuit recently sided with an ever-increasing line of cases clarifying the type of payments that may be added to a fixed salary without violating the fluctuating workweek method...more

Department of Labor Makes Its Move

With just more than a year left in this administration, the U.S. Department of Labor (“DOL” or “Department”) has rolled out two major initiatives that promise to keep employers busy ensuring they are in compliance. First, in...more

Salary and Duty Test Worries? Instead, Have It Your Way

The U.S. Department of Labor (DOL) recently published proposed rules increasing the salary to be overtime-exempt to an estimated $50,440 per year as of January 2016. There will likely be an automatic annual salary escalator...more

The DOL’s New Proposed Overtime Rules and Part-Time White Collar Employees: Can the Fluctuating Workweek Method Solve the Problem?

by Seyfarth Shaw LLP on

The big questions often have surprisingly simple solutions, staring right back at us: - If a tree falls in the forest, and no one hears it, does it make a sound? Sound exists as a mechanical wave of pressure,...more

Salary and Duty Test Worries? Maybe Try Something Else!

Do you have employees who are currently overtime exempt making under $50,000 per year, who play an important role in your organization, but you can’t justify paying a higher salary to avoid having them becoming nonexempt...more

FLSA Exemption Changes: More On Salaried-Employee Alternatives

by Fisher Phillips on

Our April 27 post gave an example of how to reduce the financial impact of a previously-exempt employee's becoming subject to the federal Fair Labor Standards Act's overtime requirement. The illustration had to do with the...more

Some Additional Thoughts on "Half-Time" Overtime: The Fluctuating Workweek Method

by Franczek Radelet P.C. on

Last week, we discussed the fluctuating workweek method and its possible benefits. Remember that the fluctuating workweek method is not a "save lots of overtime expenses method." Employers who use the fluctuating workweek to...more

Supposed Fluctuating-Workweek "Legal Prerequisites" Come From Where, Exactly?

by Fisher Phillips on

"Fluctuating workweek" pay plans are provoking much litigation under the federal Fair Labor Standards Act. These arrangements call for a non-exempt employee to be paid a salary as straight-time compensation for all hours...more

Captain Obvious Issues Most Obvious FLSA Decision of 2014 (So Far...)

by Franczek Radelet P.C. on

If you have been anywhere near a TV or radio over the past few months, you have probably seen or heard the ads for Hotels.com featuring Captain Obvious. If you’re from the Midwest, and Indiana in particular, it has probably...more

Another Federal Court Finds "Fluctuating Workweek" Overtime Compensation Violates Pennsylvania Minimum Wage Act

Recently, Judge Mitchell Goldberg of the United States District Court for the Eastern District of Pennsylvania issued a decision in Verderame v. RadioShack Corp., finding that the "fluctuating workweek" method of overtime...more

California Assembly Committee Rejects Flexible Workweek Bill

A bill that would have allowed California employers to offer employees a flexible workweek schedule has failed to pass the California Assembly Committee on Labor and Employment in a 5-2 party-line vote. The Committee rejected...more

New York Federal District Court Endorses Use of Fluctuating Workweek Overtime Payment Method Where Employer Pays Performance-Based...

True story: the other day I was speaking with a friend in the HR realm and I asked him whether he was familiar with the fluctuating workweek. He jokingly answered: “does that have anything to do with my weight gain during the...more

The Fifth Circuit Giveth and Then Taketh Away: Another Perspective on Fluctuating Workweeks in Overtime Cases

In the course of two months, two separate Fifth Circuit panels have issued decisions that call into question the application of the fluctuating workweek (FWW) method in suits for unpaid overtime based on misclassification. In...more

It's Past Time To Dispel The "Half-Time" Fog

by Fisher Phillips on

A decision by the Fifth Circuit U.S. Court of Appeals (with jurisdiction over Louisiana, Mississippi, and Texas) illustrates and exacerbates the utter and unwarranted morass into which the calculation of overtime pay has...more

Fifth Circuit Applies Fluctuating Work Week in FLSA Misclassification Case

by BakerHostetler on

You might want to grab a calculator, or at least some strong coffee, before reading this. If an employee or group of employees have been found to have been misclassified as exempt, are they entitled to time-and-a-half...more

Fluctuating-Workweek Ruling Might Be Reviewed

by Fisher Phillips on

Last month's "Fuzzy Thinking" post mentioned Sisson v. RadioShack Corp., in which a lower federal court in Ohio deferred to the U.S. Labor Department's 2011 allegation that paying performance bonuses is purportedly...more

Fuzzy Thinking About Fluctuating-Workweek

by Fisher Phillips on

In 2011, the U.S. Labor Department did its best to discourage the use of fluctuating-workweek pay plans under the federal Fair Labor Standards Act. It undertook this in a grab-bag release collectively titled "Final Rule",...more

Fluctuating Workweek and Bonus Payments Are Incompatible under the FLSA Per a Recent Ohio Federal Court Ruling

by Miller & Martin PLLC on

The “fluctuating workweek” wage payment method is allowed under the Fair Labor Standards Act (FLSA) when (1) a non-exempt employee’s hours of work fluctuate from week to week, (2) the employer and employee agree to use this...more

Eleventh Circuit Weighs in On Several Important FLSA Issues

by Akerman LLP on

The Eleventh Circuit Court of Appeals has issued an opinion that has significant implications for employers and employees alleging violations of the Fair Labor Standards Act ("FLSA"). Lamonica, et al. v. Safe Hurricane...more

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