rate you get overtime at half of your regular rate it was immediately an issue what do you do with salaried employee how do you come to that regularly and the fluctuating  you take the entire salary and you divide it by the number of hours worked in any given week and that is your right so the rate fluctuates as the hours fluctuate the more hours the lower the rates and we throw in a lot of examples in the brief and i was half tempted to put up a graph for you but i think the concept is clear so the question is where does this rule come from and of course you look at the statute itself section seven doesn't mention anything like it as the courts have recognized as written in terms of our early wages so it was a supreme court in the missile case overnight more transportation court the missile established definitively the fluctuating work week rule it had been earlier promulgated as an interpreter for rule by the department of labor almost immediately after if the effective date of the statute in  again fix salary with variable hours i think it take is important i think to take a quick look at the statute before you move on and particularly the last you know phrase of section eighty one you know w as you know basic structure is you can't work more than the overtime at forty hours now unless the employee is paid in x you know for these excess hours at a rate not less than one dollar and one dollar half times their regular rate which is employed and the one point there i like to make very quickly is that it is two numbers there there's one and there's one half one is what we call it with the always called straight time that is what you're going to get anyway you're working twenty hours twenty dollars an hour you still get that twenty dollars for hour in your overtime hours and the one half which is a deal for the fifty percent bonus you're overtime is fifty percent in the the fluctuating work week what you get already is your salary you're getting a fixed salary whatever disprove week a one million five hundred and two thousand you're getting that you continue to get that that we always get is the same amount so little  was two thousand and three you know make misinterpreted and interpret the interpretive rule it took a failed as it should have to compare its interpretation against missile so in salary in there there and that fixed salary is fixed in there you can add things on top of it and the and that and mister o does this of course has got directly deal with this issue but it's reasoning it says you know what we're going to look at the economic route apart from the statute possibly act if you have a fixed weekly wage you vic you're a very that's an economic reality for a fixed salary that doesn't change when you put it on top of it so somebody in this case earns a shift premium we're matter what you put on top of it is fixed what you actually pay is fixed in employment it's also fixed in the understanding the employee no employee thinks that if i get a shift premium they're going to dock me off my six fixed salary nor they expect that if i get a about hours equals regular time and a half regular rate for hours employed be on set story maximum equals compensation for overtime hours mean it doesn't say have time for hours of forty well you have to distinguish the two you're already getting your time i would think if you get your time that's why there's two numbers there the time is what you get anyway the time is your salary your one that isn't every time that and you get a half of your regular rate so your regular rate is already within your salary otherwise it would be breaking seth how about if you're going to be adding adding some kind of hourly rate on top of the salary then the whole missile structure falls apart why would you bother dividing entire hours of somebody's work sixty why would you can but the by the salary by sixty hours if that wasn't what the regular rate was the whole time that regular the salary covers that entire time it covers forty hours it covers and hour that covers eighty hours a range and they get around to there's no mistake when there's no shipping involved there's no issue here what the understanding is the understanding is i get this fixed salary and i make it something on top of it sometimes and sometimes not so you have one week we have no ship premium and the next week we get to ship premium that fixed salary doesn't change his one time straight time pay only changes because i've been added to that fixed part is just as fixed when you have that you know you know adding three percent on top of the salary doesn't change that fixed part of it let me let me ask your question and this is something that has been bothering me for skerries which is in your view is there any difference between minimum fixed  the part that our early gets the hourly rule very simple because it goes to the economic reality your straight time pay on a fixed spring that part of your compensation that sticks is fixed for all the hours so it is a strict time at forty hours then start one time become some kind of already rate and you're transformed to an hourly employee at that time or that part of your pay is transformed from six hour you know doesn't you have the economic standing understanding between the parties is that it is fixed for all those hours and therefore miss or tells you how you calculate the regular rate for a fixed salary and one contacts the partner later at the time which is ratified this will clearly interchange does because he fluctuating where we can undermine the a fallacy is remedial nature an employer may only pay half time over time under the fluctuating work week yes but only us certain factors  plastic can only apply this luxury work week here and comply with your will say legally to the extent it can establish that hernandez's hours fluctuating from week to week that hernandez received was a fixed amount of straight it did not vary depending on the number or type of hours that he worked each work week excluding the overtime premiums that the amount that he receives compensated in excess of minimum as relevant here for train workers requires a fixed weekly wage as counsel for appellant acknowledged and that the fixed weekly wage must be divided by all hours worked here both of these critical elements are lacking moreover plasty pack may not rely on the fluctuating work week where here his base salary was not intended to cover all hours of work  was only intended to cover st forty hours of work each week and we are classed back paid hernandez only straight time or the same rate for both his non overtime hours and his overtime hours worked not standing class to pax conclusory assertions that the law for missile all the way to date is missed every quirk was mistaken the d l has been mistaken its briefs are devoid of any authority supporting the notion that the pay pay differential whether a ship premium or some sort of bonus or commission or whatever on top of a fixed salary defeats completely the fluctuating work week is that your contention i think the law isn't applied at the time th and it says the regular hourly rate of pay is arrived at in various cases as and then it gives as an example no example number for the weekly wage and then in parentheses incidents including production bonuses if any averaged over the total hours worked each work week where there is no regular number of hours in other words exactly the situation here that seems the concept laid exactly production right i think the wording can certainly be well i don't know that explicitly blesses that but that is certainly the example that they give they things they don't actually how to calculate exactly this sort of scenario which is someone's created weekly wage and that weekly wage includes a  bonus and then it's averaged over the total hours each work week so divided by the total hours worked and there's no regular number of hours in other words the hours fluctuate week but that is not exactly what the supreme court was referring to  compensation yes in the distinguishing characteristic in both of the cases meaning constraint of letter for v t o l letter is that those in both scenarios neither of the bonuses were in the preamble to the do one thousand unless i understand your position in the district where position is it is either a six salary eight this and nothing else and if you get in something else then it beats the six hour house how does that position square with what you just said you're number one in and distance already from the department of labor i think it's where you have additional compensation that's tied to the hours worked and we also have other factors here we're not just relying on the addition of the pay as you know the court here may affirm the district court's decision on any grounds supported by the record here or there's multiple grounds and in addition to this at the time of this case distinguishes between the two if compensation which is to use your terms paid on top of the base salary and it's based on anything other than hours actually working it's not tethered to hours worked that appears to be in the courts of sad they've distinguished that situation which seems to be blast by certainly some quirks versus the situation we have here where the dish will compensation is explicitly tied to both the tight and number of hours worked here it's all compounded by the fact that plastic packed did not divide by all hours worked when they did their calculation both the acknowledgement form that they had divide by forty hours of the end result is that you're paying and they paid mister hernandez straight time he received the identical rate for his hours up to forty as he did beyond forty and now retroactively they're saying yeah but had we complied with  methodology that we did not comply with we could have paid him less under the law than we did so he's actually received the windfall he or we paid him more than we had to but they were never entitle to the presumption i think of the question which is in my opinion  they paid straight time and they didn't add in the time because bonuses additional pay for working a certain chefs then his pay would have been only half it would have been last potentially than what he received but they didn't do any of those th they didn't but they paid him something more than half time so it didn't actually get worse and he would have won the law to me a false choice i don't i don't think that that's really what the law that's not what the law requires certainly if they had to bargain with the luxury work week they could have paid this half but only if they comply with flushing what would you can't just pay half time in other words and then say look we paid straight time we only had to pay half the time because it's a way we could pay half time we didn't even qualify for that and had w qualified we couldn't pay them even less than we did it you sort of have they sort of had to make their choice and they did here and they cause they try to cover their tracks they pay them straight time where they has the same identical amount und every week and that pays intended to cover all of the hours that they work and where you have a production base bonus that doesn't impact that analysis and production base bonus starts to speak at all to analysis as we are separately paying for certain hours an additional amount because those hours have been worked or because you're working a different type of hour then you're not in the then the pay can't possibly be said to be covering all hours of work because you're paying separately for up for hours of work and here not only they doing that they're actually big by using a forty hour divisor what they are when they're saying and they do this since the thirty's the scripts where we don't look at what the parties say they're going to do we look at the parties actually did and here it's on disputed that what they did was they divided both the holiday pay the ship differential pay and the base pay each week not by last hours worked but by forty and everything and that evidence isn't that again obviously it's inherently incompatible with much work we couldn't possibly be that it only covered forty hours but in actuality covered all hours worked and i think forty five they divided by forty every single week that's not a fluctuating work of all the hour work thank you survey omf well start with the last point you know as a practical matter dividing kayaking over time dividing by forty to sing number every week you don't have to go and do a bunch of in this case no core the rule itself if mister henderson never received a shift premium we would not be here there's all that avalanche of authority he talks about all except the existence of the fluctuating work rule and it's basic things that are soon little missile most of them select a missile at some point they fail to analyze missile and that's their mistake but it just is a general proposition and so  into the you know the nominator you divide the whole thing by that so there's no question there the only question is very specific case and you add a bonus as time base and we have to take a nd here how to go or go to where this air came from he talks about  reality there's a flight but trivial and meaningless difference in the economic you're out of the bonus but it's trivial because it doesn't change the existence of the underlying actual effects fixed in practice fixed in understanding fixed in economic