Employment-Eighth Circuit Holds That Employer May Change Workweek, Even If The Result Of The Change Is To Reduce FLSA Overtime Pay

In Abshire v. Redland Energy Services, LLC , No. 11-3380 (8th Cir. 2012), the plaintiffs were five current and former employees of Redland Energy Services, LLC (“Redland”). The plaintiffs had brought this suit, alleging that Redland violated the FLSA’s overtime pay requirements by changing the designation of their workweek, but not their work schedule, so that fewer hours qualified as “overtime.” In this case, Redland had changed the plaintiff’s designated workweek from a Tuesday-to-Monday workweek to a Sunday-to-Saturday workweek, and the change resulted in fewer overtime hours for the plaintiffs. The district court granted summary judgment for Redland, and the plaintiffs appealed.

In analyzing the case, the Eighth Circuit Court of Appeals (the “Court”) said that under the FLSA’s “maximum hours” provision, found in 29 U.S.C. § 207(a)(1), the unit of time within which to distinguish regular from overtime work is the week. The statute does not define workweek. The Department of Labor’s (the “DOL’s”) regulations state that the workweek is a fixed regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him. See 29 C.F.R. § 778.105. Consistent with the plain language of this regulation, an employer does not violate the FLSA merely because, under a consistently-designated workweek, its employees earn fewer hours of overtime than they would if the workweek was more favorably aligned with their work schedules.

The Court therefore concluded that the FLSA does not prescribe how an employer must initially establish its “workweek” for overtime purposes. But can the workweek be changed after it has initially been established? The DOL’s regulations allow the change, if the change is permanent and is not designed to evade the FLSA’s overtime requirements. Again, see 29 C.F.R. § 778.105. The Court said that, as indicated above, the FLSA does not require a workweek schedule that maximizes an employee’s accumulation of overtime pay. Thus, a change to a schedule that provides less overtime pay-even if the change is intended to result in less overtime pay- should not be treated as having been designed to evade the FLSA’s overtime requirements, so long as (as in the instant case) the change is permanent and otherwise made in accordance with FLSA rules. As such, the Court concluded that the change in designation of the plaintiffs’ workweek by Redland did not violate the FLSA, and it affirmed the district court’s summary judgment for Redland.