Under the Fair Labor Standards Act, covered employers must pay non-exempt employees overtime wages for hours worked in excess of forty in a workweek. To comply, while employers must define the workweek, they retain the flexibility to do so as they see fit, as demonstrated by venerable Brooklyn-based federal Judge Jack Weinstein in a new decision. Lopez v. Hollisco Owners’ Corp., 2015 U.S. Dist. LEXIS 160569 (E.D.N.Y. Nov. 30, 2015).
In Lopez, Judge Weinstein held that DOL interpretive bulletin 29 C.F.R. § 778.115 permits employers to schedule an employee’s “workweek” to “begin on any day and at any hour of the day,” for the purposes of computing weekly hours worked provided it is “consistently-designated.” In the Court’s view, this rule highlights the importance of “permit[ing] employers to exercise flexibility in scheduling their employees’ workweek.” Based on that analysis, the Court rejected Plaintiff Lopez’s claim that his workweek was necessarily Monday-to-Sunday, rather than Saturday-to-Friday, crediting unrebutted evidence submitted by the employer in the form of paystubs, time-sheets and an affidavit confirming that the latter was the employer’s consistently-designated workweek for payroll purposes.
Lopez highlights the importance of recordkeeping to wage-and-hour compliance and claim defense.