clear mutual understanding

The technical requirements for paying overtime pursuant to the fluctuating workweek method set forth in 29 C.F.R. § 778.114, can be confusing. The regulation, for example, discusses an employee and employer having a clear mutual understanding that overtime will be paid pursuant to the fluctuating workweek (FWW) method. In a new decision analyzing the FWW method,

The requirements of paying overtime to a non-exempt employee pursuant to the fluctuating workweek method are generally straightforward and set forth in 29 C.F.R. 778.114:  (1) the employee’s hours must fluctuate from week to week; (2) the employee must receive a fixed salary that is sufficient to provide compensation at a regular rate that is