The Eighth Circuit recently held that an employer did not violate the FLSA when it changed its designation of the workweek from Tuesday-Monday to Sunday-Saturday in order to reduce the number of overtime hours worked by its employees. The decision at first glance appears to be straight-forward, since the FLSA doesn’t require that the workweek begin on any given day of the week. Yet, in another example of ambiguous governmental agency regulation giving rise to unnecessary litigation against employers, the plaintiffs were able to muster a facially viable argument based upon a single DOL rule interpreting the FLSA as follows: “The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act.” 29 CFR § 778.105.
The plaintiffs didn’t even challenge that the change was intended to be permanent. The only issue was whether the change to a Sunday-Saturday workweek was “designed to evade the overtime requirements of the Act.” The plaintiffs argued that because the change was intended to reduce the number of overtime hours worked by employees, it ipso facto was “designed to evade the overtime requirements of the Act.” Thankfully, the Eighth Circuit rejected this reasoning, recognizing that the purpose of the FLSA wasn’t to maximize the payment of overtime rates, but rather to discourage overtime work and “have an appreciable effect in the distribution of available work” amongst workers. The Eighth Circuit’s decision is consistent with the plain language of the statute, all prior precedent and the purpose of the FLSA. Yet, due to an ambiguity in one agency interpretation, the employer was forced to proceed through federal district and appellate court litigation, likely incurring substantial legal fees along the way, defending what is – but for the DOL regulation – an obviously legal practice.