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Product ID: 409072EAU
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Fluctuating Workweek and the Fluctuating Rules and Issues

OnDemand Webinar (55 minutes)

Gain a better understanding of the regulatory foundation of the fluctuating workweek.With the advent of the Biden administration, the Wage and Hour Division of the U.S. Department of Labor will be even more assertive in its enforcement of the minimum wage and overtime provisions of the Fair Labor Standards Act. During the last year of the Trump administration though, the Labor Department under the leadership of then Secretary of Labor, Eugene Scalia, and Wage and Hour Administrator, Cheryl Stanton, revised new interpretations of 'fluctuating workweek' methodology of overtime compensation for certain nonexempt employees paid a salary. Contrary to agency guidance issued in 2011, these revised rules clarify that payments of bonuses and certain other forms of premium pay should not invalidate an employer's use of fluctuating workweek methodology in the calculation of overtime pay. This topic will provide an in-depth discussion of the fluctuating workweek, explore its legal and regulatory foundation and history, and analyze whether and to what extent the revised 2020 rules, are likely to receive deference in the courts. To date, the Biden Administration has not indicated its intent to revise these revised rules, although that approach could change over time. The information will also review practical compliance solutions. This material is critical for employers who want a thorough understanding of the benefits and risks of the fluctuating workweek in the current wage and hour enforcement climate.


David A. Grant, Baker & Hostetler LLP


Current Administration and Enforcement of the FLSA by the Wage and Hour Division of the U.S. Department of Labor

The Fluctuating Workweek

• History and General Regulatory Principles-29 C.F.R. Section 778.114 and Relevant Case Law

• DOL Final 2011 Regulations

The Impact of the 2011 Rulemaking

• Court Decisions and Judicial Deference (or Lack of Deference) to DOL Fluctuating Workweek Guidance

2020 Rulemaking and Revised Regulations

• A Reversal of the 2011 Guidance

Practical Impact on Employers

• Implications for Fluctuating Workweek Methodology in Calculating Overtime for Misclassified Exempt Employees