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Fourth Circuit Court Rules on Fluctuating Workweek Case

In a case before the 4th U.S. Circuit Court of Appeals, a group of emergency medical service (EMS) employees brought suit against their employer, a county, claiming unpaid overtime compensation. Each of the plantiffs worked a nine-day, regularly recurring cycle consisting of the following hourly duty schedules:

Although their work schedules remained constant, the number of hours they worked varied from week to week.

The county in this case compensated the employees under a "fluctuating workweek" method, which the plantiffs claimed did not meet the FLSA's requirements. They claimed they were entitled to time and one-half rather than half-time overtime. Again, FLSA regulations require that employers and employees must share a clear and mutual understanding regarding the fixed payment method. The county in question had given each affected employee a memo - which the employee had to sign - explaining the payment method and how salaries would be calculated. When presented with the county's evidence, the district court found that the county had met the requirements for 29. C.F.R. 778.114, and accordingly dismissed the plantiff's claims.

On appeal, the 4th Circuit found that the county undisputedly had calculated the plantiffs' salaries in accordance with the regulations. However, the plantiffs argued - that the county was unable to the use fluctuating workweek method because the employees' hours did not actually "fluctuate" from week to week. The plantiffs conceded that they worked different hours each week, but contended that their hours did not fluctuate because they worked pursuant to a fixed, regularly recurring schedule. According to the appellate court, the plantiffs sought to "define the term 'fluctuate' in section 778.114 as a requirement of utter unpredictability."

The court noted, however, that the U.S. Department of Labor's Wage and Hour Division determined on May 16, 1966, opinion letter, that an employer whose employees work fixed, alternating 43 and 41 hour schedules was entitled to pay them using the fluctuating work week method. Similarly, in the case of EMS employees who worked a fixed schedule that varied from week-to-week, the U.S. District Court for South Carolina found that "[i]t is not necessary for regular hours to be sporadic for the regulation to be applied; it is sufficient that the regular hours vary from one workweek to another" (Roy v. County of Lexington, S.C., 948 F. Supp. 529 (D.S.C. 1996)).

Based on these findings, the 4th Circuit found that although the plantiffs worked pursuant to a fixed schedule, "their hours fluctuate, i.e., they vary, from workweek to workweek." It therefore upheld the district court's dismissal of the plantiff's claims for overtime pay beyond the half-time rate.

(Flood v. New Hanover County, 4th Cir., No. 97-1099, Sept. 22, 1997)