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

a.       Must an Employee’s Hours Fluctuate Below 40 Hours in Certain Weeks for the Fluctuating Workweek Method to Apply?

            Despite the language of Section 778.114(a), both the DOL and the courts have loosely interpreted the “fluctuation requirement.”  The DOL and at least one court have stated that there is no requirement that the employee’s hours of work fluctuate above and below 40 hours in a workweek.  56 WH Admin. Op. (Oct. 27, 1967); Condo v. Sysco Corp. 1 F. 3d 599, 602-603 (7th cir. 1993) (applying the fluctuating workweek method and finding employee worked varying amounts of overtime hours, but not fewer than 40 hours per week).  Similarly, the Fourth Circuit in Aiken v. County of Hampton, 172 F. 3d 43 (4th Cir. 1998) (unpublished), held that fluctuating base hours were not necessary and that Section 778.114 applies in situations where fixed base hours were coupled with fluctuating overtime.  The court also held that an employer’s schedule need not fluctuate in an unpredictable manner.  A year later the Fourth Circuit clarified the requirements for a fluctuating hours plan in Griffin v. Wake County, 142 F. 3d 172 (4^th Cir. 1998).  The court held that Section 778.114 does not require a schedule to be unpredictable for it to meet the “fluctuation” requirement. 

b.      Does Working a Set Schedule Preclude Application of the Fluctuating                                      Workweek Method?

·         Flood v. New Hanover County, 125 F.3d 249 (4th Cir. 1997); Griffin v. Wake County, 142 F.3d 712 (4th Cir. 1998).  In both of these cases, the Fourth Circuit held that the fluctuating workweek method can be used when employees’ workweeks fluctuated but on a fixed, repeating schedule.  In these cases, EMTs worked 24 hours on, 24 hours off, 24 hours on, and then 96 hours off.  The court held that there is no requirement that the fluctuating hours be unpredictable.

·         Aiken v. County of Hampton, 172 F.3d 43 (4th Cir. 1998) (holding that the fluctuating workweek method will apply in situations where fixed base hours are coupled with fluctuating overtime).

However, the Seventh Circuit reached a different result in Heder v. City of Two Rivers, 295 F.3d 777 (7th Cir. 2002).  In that case, the court held that because the firefighters never worked less than their required 216 hours over a 27 day period, the fluctuating workweek model could not be applied because “there is no shortfall of time (and correspondingly higher hourly rate) in one pay period that make up for longer work in another.”  The court required the city to pay overtime at the time and a half rate.

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