I know what a fluctuating work week is, and my company uses it in a way that, I think, is inappropriate. Here is my situation:
I am the manager of a small retail store in West Virginia that is part of a nationwide chain (we sell ballcaps). I am ALWAYS required to work minimum 45 hours a week and occasionally more (never less). I currently manage three part-time employees. By manage, I mean that I'm in charge of the store and I make the schedule, but the majority of my job entails actual sales and customer service and I often work in the store alone. Throughout the year my pay check varies as my hours do. But here's what I don't get. Around the holidays when retail is busy, my schedule increases to 6 days a week, between 50-55 hours each week. It also requires that I schedule the other employees more hours than usual and hire holiday help. Oddly, I DO NOT get overtime in this situation. I was told it has something to do with the fluctuating work week and the number of hours I am "supervising". Please help me to know if this is legal! How is it that I can work 55 hours in a week and not get overtime just because the assistant manager and other sales associates are working more?

Because you are being treated as a nonexempt employee (since your "salary" is being docked when you work less than 55 hours), we'll go from there. You're being ripped off even if you DO only work 45 hours.

It's not that the other employees are making more, as such. However, even with a "fluctuating work week" pay method, you STILL must be paid overtime when you work over 40 hours per week. It's just that the calculation of the premium portion of the overtime pay would decrease the more hours you work.

Let's say you make $1,000 per week which is intended to compensate you for 45 hours. Your "regular rate of pay" is $22.22.

You work 45 hours.
Straight-time pay is $1,000.
Overtime premium (straight-time portion of overtime is already included in the $1,000) is $55.55 ($22.22 * 5 OT hours * .5).
Total pay must be at least $1,055.55.

The same formula would hold true if you work more than 45 hours.

You can file a claim for unpaid overtime with the state Dept. of Labor.

I think I understand, but I'm not sure.
I do get overtime when I work my usual 45 hours, according to my paycheck. My base salary for 2 weeks at 40 hours each week is $961.54. For ten hours overtime, I get $53.42. That's my paycheck when I work 45 hour weeks.
At Christmas, here is typically what happens:
I work 103.5 hours in two weeks. My paycheck shows 80 regular hours and 23.5 overtime, but I only get the base $961.54 and no overtime pay.
I am told that this is because the other people at my store are working more than 72 hours combined due to the busy holiday time, and that if I am supervising more than 72 hours, I'm no longer eligible for overtime.
Does that sound to you like they are changing my status from non-exempt to exempt at that time of year? And if so, can they do that?.

That's a piece of hooey. The employer cannot just "decide" to change you from nonexempt to exempt to avoid overtime pay. It has nothing to do with how many hours your subordinates work. And honestly, if you are performing nonexempt work for a substantial portion of your workday, you wouldn't qualify as exempt anyway.

I would recommend filing a claim with the state Dept. of Labor. And looking for another employer who knows something about wage and hour requirements. :p

GotHats,
Pattymd is ABSOLUTELY correct... however, just a few comments for you to consider so that you realize how important it is that you file a claim with the DOL.
1. Your OT calculations on your check when you work just 45 hours seems to be inaccurate based on what you stated. Here is what I come up with: Based on your gross wage of $961.54 for 80 hours, that would make your hourly rate $12.02. So, OT in WV is calculated at time and a half, therefore, your OT rate is $18.03. TEN hours of OT would be equal to $180.30!!! Please tell me that you kept copies of your timesheets???!!!!

2. If your employer did not pay you OT during the "holiday" season, then you are entitled to receive back wages, plus possibly even more depending on the penalty laws in your state.

3. Also, Just an FYI - Chapter 21-3-10(a) requires WV employers to allow a twenty (20) minute meal break to those employees working at least a six (6) hour shift. I am going to assume that you don't get this either.

PLEASE call the DOL!! Not only will you benefit by getting back wages that are owed to you - but you will help other employees by not allowing this employer getting away with this in the future.

Since it's a fluctuating workweek, doesn't it only have to be half-time, not time and a half? I don't have a time sheet, just a log in on a computer and a log out. I don't "punch out" for breaks; I just go when I need to.

Incidentally, when I mentioned my concerns to my district manager, I was told that the company had an "agreement with the department of labor" that allowed them to do this, to take away our overtime at the holidays because then I'm "supervising more than 72 hours of employee work".
I am under the impression that I would have to "customarily and regularly" supervise the equivalent of 2 full time employees to be exempt from overtime by federal law. Even at the holidays, my employees don't work 80 hours, it's only about 72-75. And a month or so out of the year doesn't seem to me to be "customarily and regularly."
I can tell you that in larger markets than mine, like in big cities where they get much more business than my nearly-rural location, managers of this store do usually supervise the equivalent of 2 fulltime employees. They may be exempt.
I'm so frustrated.

You just about made me spit out the water I was drinking! I can't believe that your employer states that they have an agreement with the DOL. That is absolutely hilarious, and not to mention ridiculous. You can't just TAKE AWAY OT.

Here is what I know about the Fluctuating Workweek Method:
In this kind of situation, the employee has been hired with the alleged understanding that he or she would be working differing hours every week, and with the alleged understanding that he or she would regularly be working more than 40 hours a week. Because of this understanding, the employee is considered to already receive straight time pay for all hours worked because he or she receives a regular salary. ( IS THIS THE CASE FOR YOU?) For overtime hours, therefore, and employer need only pay the employee an additional half-time for the overtime hours to comply with the law. Note, however, that the half-time rate must be calculated off the total income for the week, including bonus pay and other extra compensation. Many times employers erroneously calculate the pay rate, and employees don't realize that they're not getting the overtime pay they're entitled to.

To qualify for an over-time exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations. I would recommend that you check out the dol.gov website at: http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm

I do not think that you meet any of the qualification tests that would classify you as exempt. It sounds as though that your employer is trying to put you into the Executive Exemption which requires you to "customarily and regularyly" direct the work of 2 or more FT employees. However, even if you met that test, you would also have to meet #3 which is "having the authority to to hire /fire or make recommondations."

So, here are some things I would recommend:
Try to get ahold of anything that shows how many hours you reported working each week. Then compare them to your paycheck stubs to see if you were paid correctly.
Contact the DOL with the information that you provided here and see what they recommend.
Look into getting an employment law attorney.
Find another employer. :D

Good Luck to you!!