Fluctuating Workweek and the Fluctuating Rules and Issues

Webinar: ID# 1016952
Recorded CD
About This Course:
Over the last several years, the Wage and Hour Division of the U.S. Department of Labor (DOL) has placed the employer community on notice that it intends to be very assertive in its enforcement of the minimum wage and overtime provisions of the Fair Labor Standards Act.

Consistent with this philosophy and its current modus operandi, the DOL concluded rulemaking that, among other things, discussed fluctuating workweek methodology for calculating overtime under the FLSA. Of particular concern to employers, the DOL in its regulatory preamble stated that the payment of bonuses, shift differentials, and certain other forms of premium pay are inconsistent with and can invalidate an employer's use of fluctuating workweek methodology.

This class will provide an in-depth discussion of the fluctuating workweek, explore its legal and regulatory foundation, and examine whether and to what extent the DOL's latest regulatory pronouncement is likely to receive deference in the courts.

The program will also review practical compliance solutions. This topic 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.


Current Administration and Enforcement of the FLSA by the Wage and Hour Division of the U.S. Department of Labor
The Fluctuating Workweek
  • BULLET 1
  • History and General Regulatory Principles – 29 C.F.R. § 778.114 and Relevant Case Law
  • DOL 2008 Notice of Proposed Rulemaking
  • DOL Final 2011 Regulations
The Impact of the DOL 2011 Rulemaking
  • Recent Court Decisions and Judicial Deference (or Lack of Deference) to DOL Fluctuating Workweek Guidance
  • Practical Impact on Employers
  • Implications for Fluctuating Workweek Methodology in Calculating Overtime for Misclassified Exempt Employees
About The Presenter

David A. Grant
  • Partner in the Washington, D.C., office of Baker & Hostetler LLP
  • Chair of the firm’s Employment and Labor Group
  • More than 30 years of experience representing employers in all aspects of labor and employment law, with a particular emphasis on investigations by the Wage and Hour Division of the U.S. Department of Labor under the Fair Labor Standards Act and litigation brought by the Solicitor of Labor’s Office
  • Former attorney in the Fair Labor Standards Division of the Office of the Solicitor of the U.S. Department of Labor in Washington, D.C.
  • Frequent speaker on wage and hour topics and contributor to Baker Hostetler’s Employment Class Action Blog, offering commentary on recent collective and class action decisions and trends affecting employers
  • Vice chair of the Labor and Employment Law Committee of the Administrative Law Section of the American Bar Association
  • J.D. degree, Georgetown University Law Center; A.B. degree, Bowdoin College
Fluctuating Workweek and the Fluctuating Rules and Issues
Available on CD format
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