Tick Tock: What’s the Unit of Measure for Minimum Wage Under the Fair Labor Standards Act
Home / November 2017 / Archives for November 21, 2017On November 15, 2017, the Ninth Circuit Court of Appeals issued an opinion of first impression in the Circuit regarding minimum wage determination under the Fair Labor Standards Act (FLSA). The panel affirmed a lower court’s decision in favor of Xerox in an action brought by customer service representatives who worked at call centers run by Xerox. The Ninth Circuit followed suit with the Second, Fourth, Eighth and D.C. Circuits, holding that the relevant unit of time for determining minimum wage compliance under the FLSA is the workweek as a whole instead of each individual hour within the workweek. See the opinion here. Xerox had a complex payment plan where employees earned different rates depending on the task and time spent on that task. Tasks outside those Xerox features in the payment plan had no specific designated rate. Hours were tallied at the end of the workweek under both categories and if the resulting hourly wage equaled or exceeded minimum wage, no additional payment was given. If the ratio falls below minimum wage, subsidy pay is given to employees to bump the average hourly wage up to minimum wage. The subsidy would ensure the appropriate hourly minimum wage for each workweek. The plaintiffs-appellants in the matter…