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What is a Fluctuating Work Week for Overtime Laws?

If you are paid a set salary no matter how many hours you work in a week, and your number of hours varies from week to week, and you have agreed to this, your employer can use a method called the "fluctuating work week" to calculate your rate of overtime pay.

Under this method, the set salary for the week is divided by the total hours worked in the week (including overtime hours) to arrive at a regular rate of pay.  The employee is then entitled only to the overtime premium- 0.5% of the hourly rate- for the extra hours.  This method assumes the agreed salary covers "straight time" for all hours, and that the only thing owed is the 0.5% premium.

Under this method, an employee making $700 per week and worked 48 hours would be paid "straight time" for all 48 hours at $14.5 per hour, and $7.29 per hour for the additional 8 hours.

This is clearly a more favorable calculation for the employer, and is not appropriate or legal in all circumstances.  If you are being paid overtime under the fluctuating work week method, you should consult an employment lawyer to find out if this is a lawful practice.


Learn more here about calculating overtime pay under Massachusetts and federal law.

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  • Home
  • Employment Law
    • Guide To Employment Law Content
    • Employment Contracts in Massachusetts
    • Discrimination in the Workplace
    • Employment Termination >
      • Massachusetts Paid Family Leave
      • Severance Pay
      • Unemployment in Massachusetts
    • Sexual Harassment at Work >
      • Sexual Harassment in a Small Business
      • Sexual Harassment and Non Disclosure Agreements
      • Sexual Harassment and Remote Work
    • Wage and Hour Laws
    • Independent Contractor Law
    • Non Compete Agreements >
      • Are non competes enforceable
      • Massachusetts Non Compete Act
      • Pre 2018 Massachusetts Non Competes
  • Estate Planning
    • Guide To Estate Planning Content
    • Legacy Protection
    • Why You Need an Estate Plan
    • Why You Don't Have an Estate Plan
    • Estate Planning Documents >
      • Children with Special Needs
    • Planning for Assisted Living
    • Probate Process
  • Business Law
    • Guide To Business Law Content
    • Small Business Law
    • Business Contract Basics
    • Civil Suit Defense
    • Legal Issues for Start Ups
    • Trademark Basics
    • How to Incorporate
    • Sale of Business
  • About
    • Reviews
    • Slnlaw Offices
    • slnlaw core values
    • Publications and Interviews
    • New Client Intake and Consultation
    • Contact
  • Attorneys
    • Emily Smith-Lee >
      • 2018 Lawyer of the Year
    • Jenna Ordway
    • Rebecca Rogers
    • Sharleen Tinnin
    • Elijah Bresley
  • Legal FAQs
    • Estate Planning FAQs
    • Probate FAQs
    • Small Business FAQs
    • Wage Act FAQs
    • Commission Pay FAQs
    • Overtime FAQs
    • Independent Contractor FAQs
    • Non Compete FAQs
    • Employment Discrimination FAQs
    • Employment Termination FAQs
    • Massachusettts Unemployment FAQs
    • Severance Package FAQs
    • Medical Leave FAQs
    • Sexual Harassment FAQs
    • Employer FAQs
    • Civil Lawsuit FAQs
  • Blog