An employer did not violate the FLSA by using a Monday through Sunday “workweek” to calculate overtime pay for employees whose actual work schedules ran Thursdays through Wednesdays, the Fifth Circuit held, affirming a district court’s grant of summary judgment in the employer’s favor. Noting that an employer need not begin the workweek on any given day, the appeals court wrote, ”[t]he mere fact that an established workweek does not maximize an employee’s overtime compensation does not, standing alone, violate the FLSA.” It was enough to establish a fixed, regularly recurring workweek, even if the actual work schedule spanned two workweeks and thus reduced employees’ potential overtime pay.
Shifts, “workweeks” don’t jibe
Two nonexempt employees brought a putative overtime collective action. They worked 12-hour shifts for seven consecutive days beginning every other Thursday, and were paid bi-weekly, with overtime calculated on a Monday-through-Sunday workweek basis. One of the plaintiffs started at 6:00 am every other Thursday; his standard two-week schedule amounted to 48 hours the first week and 36 hours the second week, and he was routinely paid 8 hours of overtime. The other plaintiff started at 6:00 pm every other Thursday; he worked 42 hours a week, both weeks in the pay period, and typically received 4 hours of overtime pay. They contended, though, that their workweek should reflect their actual, seven-consecutive day, Thursday through Wednesday schedule. In their view, their workweek for purposes of calculating overtime should have started on Thursday and ended on Wednesday, in which case they would have been entitled to 44 hours of overtime per pay period.
But the FLSA “does not impose such a requirement,” the appeals court held, affirming the district court’s finding that the employer did not violate the Act by calculating overtime hours in this fashion. The FLSA does not define the term “workweek,” and the DOL regulation (29 C.F.R. Sec. 778.105) merely requires a “fixed and regularly recurring period of 168 hours– seven consecutive 24-hour periods.” That period does not have to coincide with the calendar week, the regulation provides, and it may start on any day, and at any hour of that day.
The regulation also states that, for purposes of computing overtime pay, “a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees.” The employees latched on to this provision, contending that because they have “always” worked Thursday through Wednesday, the employer should have established a different workweek pursuant to this guidance. However, the DOL used the term “may,” meaning this provision was “clearly permissive rather than mandatory.” It does not compel an employer to establish a different workweek.
Backed up by persuasive authority
The appeals court found persuasive support for its holding in a 2009 DOL opinion letter in which the agency advised an employer that its nine-day, compressed workweek schedule complied with the FLSA, even though employees’ actual work schedule spanned two workweeks, thereby reducing their potential overtime compensation. So long as the workweek was fixed, consisted of 168-hour periods, and employees were paid an overtime rate for any hours worked over 40 in that specified pay period, the FLSA’s mandates were satisfied, the DOL advised.
Also on-point was the Eighth Circuit’s 2012 opinion in Abshire v Redland Energy Services, LLC, 162 LC ¶36,061, which involved nearly identical facts. The employees in that case worked 12-hour shifts for seven consecutive days, followed by seven days off, a schedule that spanned two workweeks. They, too, were paid less overtime than if their workweek had coincided with their actual work schedule. But the appeals court found no fault with the “workweek” established by the employer, reasoning that “an employer’s right to establish a workweek [is] “well-settled.”
Agreeing with its sister circuit, citing the plain language of Sec. 778.105, and noting the persuasive value of the DOL opinion letter, the Fifth Circuit held the employer’s “workweek” did not run afoul of the FLSA, even if it did not square with the employees’ actual work schedule–and resulted in a lower overtime payout. (Johnson v Heckmann Water Resources (CVR), Inc, 5thCir,164 LC ¶36,246.)
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