Fluctuating Workweek Violations
Federal and state law generally provide that employers must pay time and a half for all hours worked over forty hours a week, unless the position qualifies as exempt.
One exception to this general rule is when the employer is able to qualify for the use of a "fluctuating work week." If the employer meets the strict requirements of this exception, the employer is able to pay overtime at less than time and a half. In fact, the overtime rate under this exception is lower the more overtime hours worked.
While the labor laws provide for this peculiar exception, some employers who use this methodology do not meet the stringent requirements of the exception.
If you have been incorrectly paid under the fluctuating workweek methodology you may have a claim for the difference in the amount of overtime pay you received compared to what you would have earned if your overtime was paid at time and half.