Fifth Circuit Applies Fluctuating Work Week In FLSA Misclassification Case

If an employee or group of employees have been found to have been misclassified as exempt, are they entitled to time-and-a-half for overtime hours, or only the half-time premium?  Years ago, the Supreme Court seemed to indicate that in such a case, the employer could rely upon a fluctuating work week (often called FWW) calculation and be liable only for the half time premium (actually a little less than that, as explained below).  Overnight Motor Transp. Co. v. Missel, 316 U.S. 572  (1942). Three years ago, in Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665 (7^th Cir. 2010), the Seventh Circuit applied Missel in an overtime case to hold that the FWW calculation, rather than time-and-a-half, was the correct method to determine damages in misclassification cases.  We blogged that case on August 10, 2010.