I am a retail department manager in TN, and I am paid on the fluctuating workweek plan. I understand how my pay is calculated.

There are five department managers in my store that are paid on on the FW plan. The part I don't really get is the actual "fluctuating" part of the law. The five of us are all on a weekly printed schedule, at 40 hours per week period. Never "scheduled" for more or less. However, we may work more and rarely less based on situations that arise during the workweek. 99% of the time we work more or less based on our own judgement not because we are scheduled or even asked to work more or less. The general manager treats the FW plan as a "perk". She tells us that we are salaried managers and shouldn't be "clock watchers" but if we happen to work more than 40 hours we get the perk of half time.

I guess the question is does the flucuating part of the law need to actually be a literal fluctuating schedule or is it based more on the history of hours worked? I hope this question makes sense and thanks in advance fo responses.

It doesn't need to be a fluctuating schedule but, the must regularly fluctuate over and below 40 hours per week. Since you say you rarely work below 40, and you are always scheduled for 40 hrs a week, I don't think the DOL would consider this a fluctuating workweek.

I am assuming, even though you have a title of "dept. manager" that you are being treated as a nonexempt employee, otherwise the fluctuating workweek method would not apply. I also take it you are receiving overtime pay at .5 times your regular rate of pay in any workweek in which you work over 40 hours. Note: regular rate of pay is your total pay divided by the total number of hours in the workweek. Are they doing all this?