Does the Employer Have the Right Under FLSA to Establish Work Weeks? - American Society of Employers - Anonym

Does the Employer Have the Right Under FLSA to Establish Work Weeks?

Certain employees can work odd schedules. For example, it is not unusual for nurses to work 12-hour shifts over several consecutive days.  The same can be true in manufacturing and other work environments where business necessity requires these types of hours. A recent case in the Eighth Circuit (Michigan is in the Sixth Circuit) focused on the question of whether or not an employer can establish a work week that reduces or even eliminates the amount of overtime it must pay its non-exempt workers.

Johnson and Smith worked for Heckman Water Resources (HWR). At all relevant times, they were classified as non-exempt employees under the FLSA and were paid hourly wages. They worked twelve-hour shifts for seven consecutive days beginning every other Thursday. Smith’s shift began at 6:00 a.m., and Johnson’s at 6:00 p.m. HWR paid its employees bi-weekly and used a Monday through Sunday “workweek” to calculate overtime under the FLSA. Accordingly, each of Johnson’s two-week pay periods reflected the following hours:

 

Week

Monday

Tues

Wed

Thurs

Fri

Sat

Sunday

Total

1

 

 

 

6

12

12

12

42

2

12

12

12

6

 

 

 

42

 

Each of Smith’s two-week pay periods reflected the following hours:

 

Week

Monday

Tues

Wed

Thurs

Fri

Sat

Sunday

Total

1

 

 

 

12

12

12

12

48

2

12

12

12

 

 

 

 

36

 

Based on these hours and workweek designation, HWR compensated Johnson for four hours of overtime per pay period, and Smith eight hours.

Johnson and Smith believed that they were paid incorrectly. They believed their workweek under the Fair Labor Standards Act should be defined by the days they actually worked. If they were right, they would each have been entitled to 44 hours of overtime per the example illustrated above. On that basis they filed a lawsuit against HWR.

In order to bring an action for unpaid overtime compensation, a complainant must clear the following hurdles by a preponderance of the evidence:

  1. That there existed an employer–employee relationship during the unpaid overtime periods claimed
  2. That the employee engaged in activities within the coverage of the FLSA
  3. That the employer violated the FLSA’s overtime wage requirements
  4. The amount of overtime compensation due.

Once the employee establishes a prima facie case, the burden then shifts to the employer to “come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.”

The District Court, on Summary Judgment, held that the company did not violate the FLSA by calculating the appellants’ hours based on a Monday through Sunday workweek. Johnson and Smith appealed.

On appeal the Eighth Circuit Court of Appeals reviewed the third step of analysis, whether the employer violated the FLSA’s overtime wage requirements by imposing a Monday-through-Sunday workweek on the employees.  Johnson and Smith contended that their workweek under the FLSA should reflect their actual, seven-consecutive day, Thursday-through-Wednesday work schedule.

The Eighth Circuit Court of Appeals disagreed with Johnson and Smith.  First the court recognized that under the FLSA, an employer has the right to establish a workweek. Second, the court held that the FLSA does not define the term “workweek.” The court then reviewed Department of Labor regulations (29 C.F.R. § 778.105) which state in part that an employee’s workweek is a fixed and regularly recurring period of 168 hours; seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. A single workweek may be established for an establishment as a whole, or different workweeks may be established for different employees or groups of employees in the establishment. The regulation does not require an employer to establish different workweeks for different employees.

Finally the Court upheld dismissal of the case, stating that HWR did not violate FLSA regulations even though the actual work schedule spanned two workweeks, thereby reducing their potential overtime compensation.

Source: Johnson and Smith v. Heckman Water Resources, No: 13-40824 (Eighth Circuit Court of Appeals, July 14, 2014)

 

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