Daily News
New York Post
Page Six
The Wall Street Journal
Fox News

The Fluctuating Workweek and Failure to Calculate Regular Rate Properly

New York City Attorneys for Wage and Hour Violation Claims

Some employers take advantage of employees’ hard work by not providing them with the correct wages that they deserve. One of the most common instances in which this happens is an employer’s failure to appropriately classify an employee under the Fair Labor Standards Act, or FLSA. At Phillips & Associates, our wage and hour lawyers have helped many workers in New York City protect their rights and pursue the wages that they deserve from their employers.

Understanding the Fluctuating Workweek Requirement

According to the FLSA, non-exempt employees who are paid a salary may be paid overtime according to the fluctuating workweek method as long as certain conditions have been met. In general, the employee must earn a salary that is a fixed amount, regardless of the number of hours that are actually worked in a given week. Second, the employer and employee must have a “clear mutual understanding” that the fixed salary is provided as compensation for the hours worked in the week, regardless of how many hours were actually worked in a given week. Next, the weekly salary must be sufficient to ensure that the employee’s hourly rate never falls below the mandatory minimum wage. Finally, an employee’s hours must fluctuate from week to week.

Overtime payments for employees who are wrongfully categorized as exempt under the FLSA should be calculated according to the fluctuating workweek method, provided that the employees are paid a fixed weekly salary and are also expected to work fluctuating weekly hours. Under this method, a worker whose hours change from week to week can be paid a fixed salary “pursuant to an understanding with his [or her] employer that he or she will receive such fixed amount as straight time pay” for all of the hours that he or she worked. Since the fixed salary is designed to compensate the employee according to straight time rates, the employer is typically only required to pay the employee a 50 percent overtime premium. To determine your regular rate, divide your salary by the number of hours that you actually worked during a given week.

In some instances, an employer may take advantage of an employee by failing to calculate the fluctuating workweek rate appropriately. The employer may attempt to calculate the rate in order to avoid having to pay the employee overtime compensation, or to take advantage of an employee’s lack of sophistication in determining the appropriate rate.

Seek Legal Guidance in New York City to Hold an Employer Accountable

If you think your employer is not calculating your regular rate and fluctuating workweek pay appropriately, Phillips & Associates is ready to help. Our wage and hour attorneys can advise victims of employee misclassification and other employer misconduct in New York City. We can help you investigate your claim, collect evidence, and handle every step of the legal process with the confidence and zealous advocacy that you deserve. We offer a free consultation, so you have nothing to lose. Call us now at (833) 529-3476 or contact us online to set up an appointment. Our clients have come from throughout the five boroughs of New York City, including Manhattan, Brooklyn, and Queens.

What Our Clients Say?
"Phillips & Associates did a wonderful job. I would recommend Brittany Stevens." Angel
"Employment dispute I had a dispute with my former employer, Jesse Weinstein was patient and thorough with my case. He covered every angle and was able to help me with my dispute. I would recommend Jesse Weinstein and Phillips and Associates in the future to anyone." Margaret
"Hands down the best law firm for labor disputes in NYC. Being in the restaurant industry for more than 30 years I can say that this law firm is the number one choice for workers in the restaurant business that need to sue their company for wrongful termination. A special compliment to my lawyer Brittany Stevens. An amazing person and well prepared experienced lawyer. She was professional and empathetic to my case and worked in a time appropriate manner. She never miss a phone call at any hour of the day. Brittany and her team helped me with what I needed, when I needed it. I want to thank them all (especially Brittany), for a job well done." Massimo
"Jesse Weinstein handled my discrimination case. He was extremely patient and understanding throughout the process and remained professional and consistent even when I could not. I really felt like he had my back and I didn't have to worry. His expertise, combined with the experience of the Firm, resulted in the best possible outcome of my case. Although I wouldn't wish what I went through on anyone, things do and always will happen and I would highly recommend Jesse and this Firm to anyone facing discrimination or other workplace issues." Karen
AVVO Clients Choice Award 2012
10 Best 2017
Million Dollar Advocates Forum
Lawyers of Distiction 2018
Super Lawyers
New York County Lawyers Association