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Overtime Pay Violation: The Fluctuating Workweek and the Department of Labor’s Coefficient Table

Is your employer paying your overtime under the Department of Labor’s “coefficient table”, but you work 40 hours or more every week? If so, you very likely have an actionable overtime pay violation. As you probably know, non-exempt employees are entitled to overtime pay for all hours worked over 40 in a week. The “fluctuating workweek” was designed to calculate the “regular rate of pay” for overtime purposes for employees whose hours fluctuate from week to week- sometimes more than 40, sometimes less. It’s designed to even out the calculation of their pay for overtime purposes, and on weeks when they work more hours, it results in a lower average pay from which to calculate overtime, and on weeks where they work fewer hours, the average pay is higher. Ultimately, it should all even out to the employee getting more or less time and a half of their average hourly rate.

But for employees who work 40 hours or more every week, the “coefficient table” solely suppresses the overtime rate without ever increasing it. Such employees should not be subject to the “coefficient table”- they should get time and a half. And the majority of courts who have grappled with this issue agree. It just makes sense.

Andrew Stoll is a New York City Criminal Defense, Civil Rights, and Employee Lawyer. He is the founding partner of Stoll, Glickman & Bellina, LLP, a Brooklyn based law firm dedicated to empowering the exploited. Stoll is an adjunct law professor at Seton Hall Law School, sits on the Corrections Committee of the New York City Bar Association, and is a member of the National Police Accountability Project.