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Fluctuating Workweek and the Fluctuating Rules and Issues


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

David A. Grant

Baker & Hostetler LLP

  • Partner in the Washington office of Baker & Hostetler LLP
  • Current co-chair of the Wage and Hour Practice Team in the firm’s Employment and Labor Group; immediate past chair of the Employment and Labor Group
  • Over 40 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 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
  • J.D. degree, Georgetown University Law Center; A.B. degree, Bowdoin College

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