Under the Fair Labor Standards Act (), employees are entitled to overtime for hours worked over 40 in any workweek.
However, the law doesn’t specify how a workweek is determined. The Department of Labor has stated that a workweek is “a fixed and regularly recurring period of 168 hours— seven consecutive 24-hour periods.” Some employees have argued that their workweek must start with their first workday and encompass the next 168 hours.
Now the 5th Circuit Court of Appeals, which has jurisdiction over Texas employers, has ruled that this interpretation is wrong. Instead, employers are free to choose on which day their designated workweek begins even if the employee’s actual schedule doesn’t start on the same day.
Recent case: Kevin and Brad sued their former employer over allegedly unpaid overtime. They claimed that the company should have begun tallying their workweek at the start of their first shift and should have ended 168 hours later. If that were the case, both men would have been owed a few extra hours of overtime when their schedules over that 168-hour period meant they worked more than 40 hours.
The court said their calculations were wrong and that the workweek could start on any day of the week of the employer’s choosing. If that meant that they earned less overtime because the hours over 40 then hit a different workweek, that wouldn’t violate the FLSA. (Johnson, et al., v. Heckman Water Resources, No. 13-40824, 5th Cir., 2014)
Final note: Employers can’t change the workweek every week to manipulate the overtime. They must designate a particular 168-hour period as the employee’s workweek and stick with it at least for a reasonable time period. However, different employees can have different workweeks.