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Appeals Court Reexamines Overtime Law for “Fluctuating Workweek” Schedules

NEW ORLEANS — The U.S. Fifth Circuit Court of Appeals recently took up a case on whether or not a nearly two-decade-old precedent set by another Appeals Court concerning scheduling practices for employees working a “fluctuating workweek” remained valid to a recent unpaid overtime lawsuit. The case was brought by almost three dozen current and former security guards working fluctuating workweek schedules at a nuclear power plant who claimed the defendant intentionally scheduled staggering shifts to avoid paying the plaintiffs for all their overtime hours.

The overtime pay lawsuit, originally filed in 2016 in U.S. District Court for the Eastern District of Louisiana, the lawsuit claimed the plaintiffs should have received one and a half times their average hourly rate of pay when they worked more than 40 hours per week. The lawsuit claimed the plaintiffs worked in staggered shifts, working 36 hours in one week and then 48 hours the next, in a continuous cycle but were paid the same flat rate each pay period.

The defendant, Entergy Operations, Inc. argued the plaintiffs worked under a fluctuating workweek schedule under the Fair Labor Standards Act (FLSA), which allows employers to pay workers essentially a flat pay rate each week. However, one of the conditions to this type of practice is that the worker’s schedule must fluctuate between more and less than 40 hours per week.

While the plaintiffs in this case did indeed work schedules of one week above the 40-hour overtime threshold followed by a week working above 40 hours, they argued the defendants created this arrangement on purpose to skirt federal wage and labor laws. The fluctuating workweek provisions of the FLSA were created to allow employers to retain employees in situations where the hours worked would be uncertain, thus incentivising employees to remain with companies despite working fewer hours some weeks.

In their decision, the Appeals Court overturned the District court’s finding for summary judgement in favor of the defense and sent the case back down for a trial. While the court had ruled contrary to a similar case in 1998 before the Fourth Circuit, it left other aspects of the case to be determined by a jury.

Fluctuating Work Week Unpaid Overtime Lawsuit

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