Understanding the mechanics of compensation and overtime pay can be confusing in the ever-evolving landscape of labor laws and employment regulations.
One particularly complex pay structure is the “fluctuating workweek” method for calculating income, which offers a unique approach to calculating hours and overtime compensation for certain salaried and non-exempt employees.
While a fluctuating workweek method provides employers and employees with flexibility while ensuring that eligible employees receive fair compensation for their overtime hours, it comes with stringent eligibility criteria requiring strict compliance with state and federal labor laws. Moreover, some employers have taken advantage of the structure to avoid paying overtime.
This article will delve into what a fluctuating workweek is, how it works, its pros and cons, and how employees can ensure they’re fairly paid. Ready to untangle the complexities of fluctuating workweek pay structures? Contact us today for a free case review.
What Is a Fluctuating Workweek?
Employers often hire employees to work non-standard, fluctuating hours on an ongoing basis. For instance, an employee may work 30 hours one week, 20 hours the next, and 60 hours the following week.
To simplify the management process and comply with the overtime pay requirements for all hours worked more than 40 in a workweek, employers sometimes prefer to pay these employees on a salaried basis. This is where implementing a fluctuating workweek (FWW) method can be helpful.
How Does the Fluctuating Workweek Method Work?
The FWW is an approach to calculating overtime pay for certain salaried, non-exempt California employees. It is governed by both state and federal labor laws, with particular emphasis on the Fair Labor Standards Act (FLSA) and California’s labor statutes. Under the FFW method, eligible employees receive a fixed salary for all hours worked in a workweek, regardless of the number of hours worked.
Although the employee’s salary does not vary under the FWW method, the method’s key feature is that the regular pay rate varies weekly based on the number of hours worked. Still, employers pay the total salary amount even when employees don’t work their full scheduled hours.
Here’s how it works:
- The employer pays the employee their full fixed salary for all hours worked in a workweek, regardless of whether they work 20 or 40 hours or more.
- To determine the overtime rate, the employer divides the fixed salary by the total number of hours worked in the workweek—this calculates the regular rate of pay.
- Employers then calculate overtime pay at half the regular rate for each overtime hour and the fixed salary.
- The total compensation for the week is the fixed salary plus the additional overtime pay for overtime hours worked.
For example, if an employee earns $600 a week and works 40 hours one week but 44 the next and 48 the following, their regular rate would effectively decrease from $15 to $13.64 and then $12.50, but their employer would still pay them the same $600 a week. When utilizing the FWW method, employers must also ensure that the adjusted regular rate never falls below federal, state, or local minimum wage requirements.
Who Is Eligible for the Flexible Workweek Method?
Not all salaried employees are eligible for FWW pay in California. To qualify, employees must meet specific criteria. These criteria include:
- Non-exempt status. Employees must be classified as non-exempt from overtime regulations. In other words, they must be eligible for overtime pay under federal and state laws.
- Agreement with employer. Employees and employers must have a clear and mutual understanding and agreement that they will use the FWW method to calculate overtime pay.
- Variable work hours. The employee’s work hours must demonstrably fluctuate from week to week so that some weeks involve more hours worked than others.
- Fixed salary. The employee must receive a fixed salary, which remains consistent regardless of number of hours worked.
- Regular rate calculation. The standard pay rate must be recalculated weekly based on the hours worked.
Moreover, in California, employers must provide employees with meal and rest breaks as mandated by California labor laws.
It’s also important to note that there have been variations in how federal judicial districts interpret and apply these requirements. Additionally, California’s method of calculating the regular rate for the FWW may differ from the federal approach; thus, employers must adhere to state guidelines.
FAQ
Do Employees Get Fluctuating Workweek Overtime?
Under the FWW method, the employer must pay the employee an additional half of their regular rate for all overtime hours worked in that workweek. However, an employee’s standard pay rate varies due to fluctuating hours worked. Employers then use this varying rate to calculate the additional overtime premium.
What Are the Advantages of the Fluctuating Workweek Method?
The FWW method offers advantages to both employers and employees, including a predictable income, flexible scheduling, and reduced overtime costs. This method may also benefit employees who count on a minimum weekly pay amount, regardless of how few hours or days they work a week.
What Are Potential Concerns with the Fluctuating Workweek Method?
While the FWW method can be beneficial, it also presents challenges. The more hours an employee works, the lower their regular rate is, diminishing their earning capacity. And if employees fail to understand the FFW’s implications, disputes can arise.
Furthermore, some employees might perceive the lower overtime rate as a disincentive to working overtime hours, potentially affecting morale and productivity. FWW calculations can be complex, requiring careful record-keeping and accurate regular rate determinations so employers pay employees correctly.
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Theo Khachaturian
Theo is a trial & appellate lawyer whose practice has emphasized wage-and-hour class actions, business disputes, wrongful termination, discrimination, harassment, and intellectual property theft. He has tried civil cases and argued before various California Courts of Appeal.