Captain Obvious Issues Most Obvious FLSA Decision of 2015 (So Far…)
We have roughly two and a half weeks left in 2015, so I can’t officially call this decision the most obvious FLSA decision of 2015 yet, but I can be pretty certain that it would be hard to top this decision from just after Thanksgiving from the Eastern District of New York. For those of you not familiar with the Captain Obvious reference, this is a recurring (read: at least annual) installment on my blogs when I come across an FLSA case that I just cannot believe people have actually litigated.
Unless you don’t listen to the radio or watch TV, you are almost certainly familiar with the ingenious Hotels.com commercials featuring Captain Obvious. I’ve often wondered if the person or ad agency who created Captain Obvious was from Indiana or the Midwest. As someone who has lived and worked around Indiana most of my life, I’ve spent years chuckling along with the Bob and Tom Show’s Mr. Obvious. The skits are the same: Mr. Obvious or Captain Obvious give, well, obvious and simple advice about a particular problem. Sometimes, I wonder if federal judges feel like Captain Obvious.
An Eastern District of New York judge certainly could have been forgiven for feeling that way in an opinion issued after Thanksgiving that you could summarize Captain Obvious-style as: “If the FLSA regulations say that an employer can establish a workweek to ‘begin on any day and at any hour of the day,’ your workweek not only can begin on any day, but your employer gets establish the day it begins.” No. Really. That’s what the Eastern District of New York had to say in the Most Obvious FLSA Decision of 2015 (So Far…).
The plaintiff, a non-exempt porter at a co-op owned by one of the defendants, claimed that he was not paid overtime wages when he worked 56 hours every other week from Monday to Sunday:
Week | M | Tu | W | Th | F | Sa | Su | Total |
1 | 8 | 8 | 8 | 8 | 8 | 8 | 8 | 56 |
2 | 8 | 8 | 8 | 24 |
If that breakdown strikes you as an odd way to structure a work schedule, it should. It certainly did to the defendants, who explained—supported by pay stubs and policies—that the plaintiff’s workweek for purposes of the FLSA was Saturday to Friday, or something that looked like this:
Week | Sa | Su | M | Tu | W | Th | F | Total |
1 | 8 | 8 | 8 | 8 | 8 | 40 | ||
2 | 8 | 8 | 8 | 8 | 8 | 40 |
Incredibly, the plaintiff asserted in his complaint that his workweek under the FLSA should have begun on Monday and ended on Sunday, thereby entitling him to sixteen hours of overtime in one week and a 24-hour workweek in the other. You don’t have to be a wage and hour attorney to guess correctly that the district court granted summary judgment for the employer. The judge kindly noted that the plaintiff’s case had “no merit” and had proceeded “under the mistaken notion[] . . . that an employer cannot define the work week as running from Saturday to Friday for purposes of compensating overtime.”
The FLSA Does Not Require You to Maximize Your Payroll Expenses
The FLSA itself does not define what constitutes a “workweek,” but, as the Eastern District of New York judge helpfully pointed out, the Department of Labor’s FLSA’s regulations do! 29 C.F.R. § 778.105 states that a workweek “may begin on any day and at any hour of day” and “need not coincide with the calendar week,” so long as it is a “fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods.”
The employer’s Saturday through Friday workweek complied with the FLSA regulations, and nothing in either the FLSA or the DOL’s regulations required the company to use the plaintiff’s preferred Monday-Friday workweek that maximized his overtime compensation. As the Fifth Circuit observed in a similar case in 2014, “The mere fact that an established workweek does not maximize an employee’s overtime compensation does not, standing alone, violate the FLSA.”
The bottom line here is that sometimes all it takes to figure out the FLSA is to know how to read. The FLSA regulations give employers the unfettered right to establish a regular workweek. Employers, as long as you choose one and keep it consistent, you don’t have to choose one that maximizes your payroll expenses, like the porter in this case argued. You may set any seven-consecutive-day, 168-hour workweek for your employees, or even particular groups of employees or different individual employees. As long as your workweeks are consistent and regular, Captain Obvious is your friend!
