Many employers still use the fluctuating workweek to manage the payroll of employees who have to work some weekends, but not others. The employers claim it all evens out in the end, but employee advocates say otherwise, especially when it comes to overtime.
The federal Fair Labor Standards Act (FLSA) defines overtime as any time spent working after eight hours a day or forty hours a week. That means any time an employee works more than forty hours within a seven-day time span is overtime, but with fluctuating workweeks, it doesn’t always get counted as overtime. For example, if an employee works six days in a row, but one or more of those days count towards another pay period (in which they have, let’s say, two days off before going back to work) then that sixth day in a row of work never gets counted as overtime, even though it should under the current labor law.
One of the latest companies to be hit with an overtime class action lawsuit as a result of their fluctuating workweek schedule is Cerner, a health information technology company. The employment lawsuit, which was initially filed in 2014, alleged Cerner used a payroll processing system that system failed to properly calculate workers’ overtime wages by not including all the wages, commissions and bonuses they had earned into their regular rate of pay, in addition to the allegedly unfair fluctuating workweeks. When they did pay workers for overtime hours, they allegedly did so a full pay period late. Continue reading