Wednesday, June 23, 2010

The "Fluctuating Workweek" Method of Calculating Overtime Under the FLSA: The Minimum Wage Requirement


·         Arnold v. Kelly’s Café Am., Inc., 2007 U.S. Dist. LEXIS 90623 (W.D. Wash. Aug. 12, 2005) (rejecting fluctuating workweek method in part because employee’s average hourly earnings under fluctuating workweek method were less than the required minimum wage in 19 of the first 20 weeks).
·         Aiken v. County of Hampton, 172 F.3d 43 (4th Cir. 1998) (finding employer’s limited use of a minimum wage adjustment did not indicate noncompliance with minimum wage requirements for use of fluctuating workweek method).
·         Cash v. Conn Appliances, 2 F. Supp. 2d 884 (E.D. Tex. 1998) (deeming evidence of isolated instances when regular rate fell below minimum wage for individual employees to be insufficient to preclude use of fluctuating workweek method, provided that shortfall was cured).

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