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FLSA2009-3
January 14, 2009
Dear Name*:
This is in response to your request for an opinion regarding whether the
proposed method of your client (the employer) for computing retroactive payment
of overtime complies with the Fair Labor Standards Act (FLSA). Based on a
review of the information provided, it is our opinion that the proposed method
satisfies the FLSA.
The employer has for some time considered certain employees to qualify for
exemption under section 13(a)(1) of the FLSA.*
The employer expected the employees to work at least 50 hours per week and
paid them a guaranteed salary bi-weekly. The employer’s payroll software
converts the bi-weekly salary to an hourly rate by dividing the salary by
100, the minimum expected number of hours worked for a two-week payroll period.
This is done without regard to whether the employee has worked more or less
than 100 hours in the pay period. For example, if the employee’s salary is
$1,825.50, the payroll software converts this to an hourly rate of $18.25
($1,825.50 divided by 100). The paycheck stub shows the $18.25 per hour rate
and the 100-hour divisor. In a follow-up correspondence, you stated that
the employees’ hours worked fluctuated above and below fifty hours per week
notwithstanding the minimum fifty-hour week expectation. Typically, however,
the employees worked at least fifty hours per week.
The employer recently realized that due to a reorganization, the nature of
the work performed by some of the employees ceased to meet the duties test
of the section 13(a)(1) exemptions. The employer now treats the affected
employees as nonexempt and complies with the recordkeeping, minimum wage,
and overtime requirements of the FLSA for these employees. The employer will
pay back wages to the employees for overtime hours worked during the period
of misclassification. The employer is reconstructing the number of hours
worked by the employees over this period. Once this is completed, the employer
will pay overtime retroactively by (1) dividing the weekly equivalent of the
employee’s bi-weekly salary by the employee’s hours worked in that workweek;
(2) multiplying the resulting regular rate by one half; and (3) multiplying
the half-time rate by the number of overtime hours worked in that workweek.
In the follow-up correspondence, you stated that the salaries involved are
high enough that the regular rate would in all cases exceed the applicable
minimum wage.
You ask whether the proposed method of computing retroactive payment of overtime
complies with the FLSA.
Under the fluctuating workweek method of payment an employee may be paid
a fixed salary that serves as compensation for all hours worked if it is sufficient
to compensate the employee for all straight time hours worked at a rate not
less than the minimum wage and the employee is paid an additional one-half
of the regular rate for all overtime hours. See
29 C.F.R. § 778.114(a). The regular rate of pay will vary due to
the fluctuating hours worked week to week. See id. § 778.114(b).
The full salary must be paid even when the full schedule of hours is not worked.
See id. § 778.114(c). Finally, there must be a “clear mutual
understanding of the parties that the fixed salary” is “compensation for however
many hours the employee may work in a particular week, rather than for a fixed
number of hours per week.” Clements v. Serco, Inc., 530 F.3d 1224,
1230 (10th Cir. 2008); see 29 C.F.R. § 778.114(a). As
stated in Wage and Hour Opinion Letter FLSA-772 (Feb. 26, 1973),
[a]n agreement or understanding need not
be in writing in order to validate the application of the fluctuating workweek
method of paying overtime. Where an employee continues to work and accept
payment of a salary for all hours of work, her acceptance of payment of the
salary will validate the fluctuating workweek method of compensation as to
her employment.
Furthermore, the Department’s regulations do not require that the “clear
and mutual understanding” extend to the method used to calculate the overtime
pay. See Valerio v. Putnam Associates Inc., 173 F.3d 35, 40 (1st Cir.
1999) (“The parties must only have reached a ‘clear mutual understanding’
that while the employee’s hours may vary, his or her base salary will not.”).
Rather, 29 C.F.R. § 778.114 only requires that the employees have a “clear
and mutual understanding that they would be paid on a salary basis for all
hours worked.” Clements, 530 F.3d at 1230.
It is clear the employer paid the employees a fixed salary for variable hours
worked and not on an hourly basis. The payroll software’s conversion of the
salary into an hourly rate and the hourly rate notation on the paycheck stub
do not negate this fact. Therefore, because the fixed salary covered whatever
hours the employees were called upon to work in a workweek; the employees
will be paid an additional one-half their actual regular rate for each overtime
hour worked, which at all times exceeds the minimum wage; and the employees
received and accepted the salary knowing that it covered whatever hours they
worked, it is our opinion that the employer’s method of computing retroactive
payment of overtime complies with the FLSA.
This opinion is based exclusively on the facts and circumstances described
in your request and is given based on your representation, express or implied,
that you have provided a full and fair description of all the facts and circumstances
that would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your letter
might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private
litigation concerning the issues addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department
of Labor. This opinion does not constitute supervision of payment of back
wages due to any employees under 29 U.S.C. § 216(c) of the FLSA.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
* Note: The actual name(s)
was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
Unless otherwise noted, any statutes, regulations, opinion letters, or
other interpretive material cited in this letter can be found at www.wagehour.dol.gov.
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