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$30 Million Settles Publix Super Market Overtime Claim

NASHVILLE — Department and assistant department managers working for Publix Super Markets Inc. will share in a recent $30 million settlement. The settlement, which received court approval in Tennessee federal court in early February, is intended to resolve an ongoing collective action overtime pay lawsuit. In the managers’ claim, the supermarket chain allegedly failed to pay proper amounts of overtime when the managers worked more than 40 hours in a workweek. Publix denies the allegations, but determined that it was more cost and time effective for both parties to reach a settlement. Nearly 1,600 managers joined the lawsuit before the settlement was reached.

The Managers’ Claim

The lawsuit, filed in May 2012, alleges Publix used a “fluctuating work week” when scheduling and calculating the number of hours the department and assistant department managers worked. The company allegedly did not include the managers’ holiday pay, holiday bonuses, or other required items when calculating the managers’ overtime rate of pay. Under Publix’s fluctuating workweek, managers were paid a set salaried amount each week regardless of the number of hours they worked. When the manager worked overtime, the manager was allegedly paid overtime at half of their average hourly rate. While an employer may pay overtime at one-half of an employee’s regular rate, if they are on a fluctuating workweek, typically providing employees other forms of compensation beyond a fixed salary indicates that the employer cannot use the fluctuating workweek overtime calculations. After the filing of the lawsuit, the company eliminated the fluctuating workweek schedule.

Fluctuating Workweek

A fluctuating work week, when discussing overtime, describes more than just a varied schedule. If an employer is using a fluctuating workweek to calculate overtime pay at one half of an employee’s regular rate, the employer and employee must meet certain requirements. Otherwise the employer is required to pay the employee one and a half time their regular rate for any overtime worked.

The fluctuating workweek method allows employees to have a more consistent paycheck each week despite potentially significantly changing work hour requirements. For instance managers working in retail work more hours during the holiday seasons than they do during slow seasons. The way the fluctuating workweek works is that first the employer and employee agree to use the fluctuating workweek method. Then the employer must pay the employee a fixed salary each week, regardless of the number of hours the employee works over or under 40 hours, and the employee’s schedule must actually fluctuate. If these three requirements are met, and the employer does not provide other forms of compensation like holiday pay or bonuses, then the employer can pay overtime at one half the employee’s regular rate.

If you believe you are improperly on a fluctuating work week contact our knowledgeable team of overtime pay lawyers today at (855) 754-2795 or complete the Free Unpaid Overtime Case Review. If we accept your case, we will represent you under our No Fee Promise. This means there are no legal fees or costs unless you receive a settlement.

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