nephilim
11-05-2006, 10:13 AM
My employer is changing my pay to a fluctuating workweek. I have read 29 CFR 778.114 which discusses this and I have a question. It says as long as all the legal prerequisites are met, then this satisfies the Act. I was wondering exactly what those prerequisites are? The reason being is I am scheduled to work 45 hours every week. To me, this is a fixed workweek. The reasoning from the employer is sometimes I may work over 45 hours. I thought you had to actually have a fluctuating workweek i.e. be scheduled 45 one week and maybe 50 the next for this plan to be used. Any help would be greatly appreciated. Also, if anyone knows where I could find more information on this I would like to review myself. Thanks!!
ScottB
11-05-2006, 10:24 AM
Excellent question!
As I understand it, the work week MUST fluctuate, even if it does so on a regular basis (45 hours one week, 50 the next, on a regular cycle).
The occasional variance from the hours should not cut the mustard.
Personally, I think the fluctuating work week method is a bad deal for employees and I would hate to try to figure out the pay due to employees working on such a weird plan.
Pattymd
11-05-2006, 11:01 AM
Yep, and not only must the hours fluctuate, they must do so consistently. Just having to work "overtime" won't do it.
ArmyRetCW3
11-06-2006, 03:23 PM
§ 778.114 Fixed salary for fluctuating hours.
(a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many….
Hours may fluctuate not necessarily must fluctuate. The real question is not whether the hrs fluctuates or not. The question is it legal or not? The employer has made a business-payroll decision to pay a salary for a specific number of hrs. If the employee’s hrs don’t fluctuate enough, (is not big deal) an FLSA violation has not occurred. As long as the overtime is paid, at the correct ½-time overtime rate, when and if the employee works overtime is the real issue.
Pattymd
11-07-2006, 05:58 AM
There seems to be a conflict of opinion here as to whether fluctuating hours MUST exist or not. I suggest you contact the federal DOL for their opinion. (866)4-USWAGE
