1 9

- 1647 Thomas v. Bed, Bath & Beyond UNITED STATES COURT OF APPEALS 1
2 FOR THE SECOND CIRCUIT 3
4 August Term 2019 5 6 ( Submitt ed: April 14, 2020 Decided: June 15 , 2020) 7 8 Docket No. 19

- 1647

- cv 9

________ 10

11 D ANYELL T HOMAS , INDIVIDUALLY AND ON BEHALF OF ALL OTHER 12 EMPLOYEES SIMILARLY SITUATED , R ASHAUN F. F RAZER , INDIVIDUALLY 13 AND ON BEHALF OF ALL OTHER EMPLOYEES SIM ILARLY SITUATED , A NDRAE 14 W HALEY , INDIVIDUALLY AND ON BEHALF OF ALL OTHER EMPLOYEES 15 SIMILARLY SITUAT ED , C HERYL A. S TRYCHARZ , INDIVIDUALLY AND ON 16 BEHALF OF ALL OTHER EMPLOYEES SIMILARLY SITUATED , D ANIELLE 17 B ROWN , INDIVIDUALLY AND ON BEHALF OF ALL OTHER EMPLOYEES 18 SIMILARLY SITUATED , 19
20 Plaintiffs

- Appellants, 21
22 H ECTOR C ARABALLO , C UTHBERT B APTISTE , E LIZABETH P ADILLA , K ARLA 23 R EYNOSA , B YRAN L AFOREST , R OBERT G UY D ESIR , R ADICA K UTWARU , 24 A NDREW C ERTOMA , V ILLACRES B YRON , J OHN C UTAJAR , A LEXIS C ARREE , 25 A NTHONY R OLLOCK , J OSE A LBERTO C ASSIA , L ATIA D IAZ , L EROY C LARKE , 26 T OMIKA M. B OYD , L OUISA P ERRY , M ARIA C. M AHAN , E LENI M IGLIS , 27
28 Plaintiffs, 29
30

v. 31
32 B ED B ATH & B EYOND I NC ., 33
34 Defendant

- Appellee. 35

________ 361 9

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2 Before: C ALABRESI , PARKER, and LIVINGSTON , Circuit Judges

. 1 2 Appellants are employees of Appellee Bed Bath & Beyond (BBB)

. Prior 3 to March 2015, BBB calculated appellants’ overtime compensation using the 4 fluctuating workweek (FWW) method. Appellants contend that BBB was 5 precluded from using the FWW method and that BBB therefore owes 6 appellants compensation for unpaid overtime. We hold that appellants failed 7 to demonstrate a genuine dispute of material fact regarding whether their 8 wage payments were in consistent with the FWW metho d . We therefore 9 AFFIRM the district court’s order granting BBB’s motion for summary 10 judgment and den ying appellants’ motion for summary judgment

. 11 12 13 JAMES E. MURPHY , Virginia & Ambinder, LLP , New York, NY, for 14 Plaintiffs

- Appellants

. 15 JONATHAN L. SULDS , Greenberg Traurig, LLP , New York, NY 16 ( Justin F. Keith, Kelly M. Pesce , Greenberg Traurig, LLP , Boston, 17 MA, on the brief ) , for Defendant

- Appellee

. 18 19

20
CALABRESI , Circuit Judge : 21

This dispute examines the limits of employers’ ability to calculate 22
overtime compensation using the fluctuating workweek (FWW) 23

method. Section 207 of the Fair Labor Standards Act caps non

- exempt 24
employees’ non

- overtime hours and requires employers to pay as 25
overtime compensation “a rate not less than one and one

- half times the 26
[employee’s] regular rate. ” 29 U.S.C. § 207. In a pair of dec isions handed 27
down in 1942, the Supreme Court recognized what has come to be 281 9

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3 known as the FWW method. This formula for calculating overtime 1
compensation

— described in more detail below

— may sometimes result 2
in decreasing the size of the “ regular rate ” which , under § 207 , for ms the 3
basis for determining required overtime pay. E mployers seeking to use 4

the FWW method for establishing overtime pay must , however, comply 5
with certain requirements, including the payment of a guaranteed 6
weekly wage

. 7

Appellants in thi s case allege that their employer was precluded 8
from using the FWW method and consequently that the employer 9
underpaid appellants for overtime work . Specifically, appellants assert 10

three violations of the FWW method : ( i ) that they did not receive fixed 11
and guaranteed weekly wages, ( ii ) that their schedules did not fluctuate 12

above and below the FLSA non

- overtime limit of 40 hours per week , and 13
( iii ) that employers using the FWW method may not permit employees 14
who work on holidays or previously sched uled days off to shift their 15
paid time off to later dates. We hold that appellants failed to 16
demonstrate a genuine dispute of material fact regarding whether they 17
received fixed and guaranteed weekly wages . We also hold t hat the 18
FWW method does not require employees’ hours to fluctuate above and 191 9

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4 below 40 hours per week , and that BBB’s practice of permitting 1
employees to take days of paid time off on later dates after working on 2
holidays or previously scheduled days off is consistent with the FWW 3

method. We therefore AFFIRM the district court’s order granting BBB’s 4
motion for summary judgment and denying appellants’ motion for 5
summary judgmen t

. 6

I . Factual and Legal Background 7

A

. 8

Appellants are Department Managers (DMs) currently or 9
formerly employed by appellee Bed Bath & Beyond (BBB), a home

10
goods retailer. Until March 2015, BBB calculated appellants’ overtime 11
compensation using the fluctuating workweek (FWW) method

. After 12

March 2015, BBB switched to paying DMs overtime based on 150% of a 13

non

- FWW hourly rate. 14

The FWW method operates as follows : f or non

- exempt employees 15
paid a fixed weekly salary , 161 9

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5 ( a ) calculate the hourly “regular rate” for a given week by 1
dividing a non

- exempt em ployee’s fixed weekly salary by the number 2
of hours the employee actually worked during that week; 3

( b ) divide the hourly “regular rate” for a given week in half; and 4

( c ) pay non

- exempt employees the fixed weekly rate, plus the 5
hourly half

- rate for each o vertime hour. Overnight Motor Transp. Co. v. 6

Missel , 316 U.S. 572, 580 (1942) , superseded by statute on other grounds as 7
stated in Trans World Airlines, Inc. v. Thurson , 469 U.S. 111, 128 n.22 (1985)

. 8

Each time BBB hired or promoted an appellant to the DM position, 9
BBB provided that individual with documents explaining BBB’s method 10
for calculating overtime compensation. These documents included a 11
Department Manager Acknowledgment form which stated: 12

At the time I was hired, I was told what my anticipated weekly 13 compensation will be and how it will be calculated. 14
15 I understand that my weekly compensation consists of two 16 components: (1) a base weekly salary; and (2) an additional 17 amount for all hours above 40 that I work during a week. 18
19 I understand that my base weekly salary is compensation for all 20 hours I work in a week. I will get paid this base salary for each 21 week I work, whether or not I work 40 hours in that week, subject 22 to the Company’s sick day an d leave policies. 23
241 9

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6 I further understand that I will be scheduled for no less than 47 1 hours per week, but that my actual hours worked will fluctuate 2 depending on the needs of my store. 3
4 Thomas v. Bed Bath & Beyond, Inc. , 309 F. Supp. 3d 121, 1 26 (S.D.N.Y. 5
2018). Similar documents that were provided to appellants at the time 6
they were hired and on later dates also described this payment 7
arrangement. Id. 8

BBB produced documents covering over 1,500 weeks during 9
which appellants worked for BBB prior t o March 2015. These documents 10
reflect that “in almost every week at issue, the plaintiff DMs in fact either 11
worked 40 or more hours, or, when annual or sick leave time taken that 12
week was added to their actual hours worked, were credited with 13
having worked 40 or more hours.” Id. at 127. During six weeks, however, 14
appellants performed no work and received no pay. During six other 15

weeks , appellants’ pay stubs reflected some but fewer than 40 hours of 16

work or credited paid time off

. 1 These latter instances are central to this 17

1 “Credited paid time off” refers to time away from work that an employer expressly permits and agrees to compensate in the same manner as it would time spent working. Employers use systems of credited paid time off to track and manage employees’ paid leave . For example, an employer might stipulate that employees receive 150 hours of paid time off per year and credit 3 such hours for time spent at a1 9

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7 case, for they are also the only six instances in which appellants did not 1
contemporaneously receive full weekly salaries (apart from the six 2
weeks with no work and no pay). 3

On occasion, BBB asked DMs to work on holidays or previously 4
scheduled days off. When this happened, BBB would permit DMs to 5
take paid time off o n later dates

. 6

B

. 7

On October 18, 2016, appellants filed a complaint on behalf of 8

DMs and Assistant Managers ( AMs ) employed by BBB in New York, 9
New Jersey, and Connecticut. Appellants filed their second amended 10
complaint , the operative complaint in this case, on June 28, 2017. 11

Appellants’ second amended complaint seeks overtime wages 12
pursuant to the FLSA, 29 U.S.C. §§ 207, 216(b); New York Labor Law § 13
663; and 12 New York Codes, Rules, and Regulations §§ 146

- 1.4, 1.6. 14

doctor’s appointment, without reducing that employee’s pay. The FWW method does not preclude employers from ma naging paid leave in this way. The DOL has opined, however, that employers using the FWW method may not make deductions from employees’ pay for time spent away from work, even “where there is no paid leave to substitute for employee absences.” Opinion Lett er, Dep’t of Labor, 1999 WL 1002399 , at *2 (May 10, 1999).1 9

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8 After the conclusion of discovery, the parties cross

- moved in October 1
and November of 2017 for summary judgment on the issue of liability. 2

On February 21, 2018, the district court (Engelmayer, J. ) granted 3
BBB’s motion for summary judgment and denied appellants’ motion for 4
summary judgment , both as to the DMs

. Thoma s , 309 F. Supp. 3d at 13 9

. 5

The AMs’ claims were subsequently settled. On May 6, 2019, the district 6

court entered final judgment, and appellants (DMs) timely filed a notice 7
of appeal on June 3, 2019. 8

C

. 9

Section 207 of the Fair Labor Standards Act ( FLSA ) limits covered 10
employees’ weekly non

- overtime hours (currently to 40) and requires 11
employers to pay as overtime compensation “a rate not less than one 12

and one

- half times the [employee’s] regular rate.” 29 U.S.C. § 207. The 13
Supreme Court has observed that, “[b]y this requirement, although 14
overtime was not flatly prohibited, financial pressure was applied to 15
spread employment to avoid the extra wage and workers were assured 16
additional pay to compensate them for the burden of a workweek 17
beyond the hours fixed in the [FLSA].” Missel , 316 U.S. at 577

– 78. 181 9

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9 In order to assess compliance with § 207, courts must determine 1
an employee’s “regular rate.” And Congress did not define this term in 2

the FLSA

. Walling v. A. H. Belo Corp. , 316 U.S. 624, 634

– 35 (1942)

. 3

D

. 4
This question of how to calculate “ regular rates ” generated a 5
series of Supreme Court decisions in the 1940s. Of particular importance 6

to the instant dispute are two of these opinions, issued on the same da te 7
in June 1942, which addressed the application o f § 207 to weekly rates of 8

pay. 9

In Overnight Motor Transportation Co. v. Missel , the Supreme Court 10

faced the question of whether Congress possesses constitutional 11
authority to impose overtime rules beyond requiring employers to pay 12
the minimum wage for non

- overtime hours and 150% of the minimum 13
wage for overtime hours. 316 U.S. at 575

– 76. The Court held that 14
Congress possessed such power and that the FLSA “unambiguous[ly ] [] 15
calls for 150% of the regular, not the minimum, wage.” Id. at 57 7

. 16

Having determined that the employee in Missel was entitled to 17

150% of his “ regular rate, ” the Court needed to calculate that rate. The 18
employee received a “salary [of] $25.50 per week and thereafter $27.50.” 191 9

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10 Id. at 574. His timesheets “show[ed] an average workweek of 65 hours, 1

with a maximum of 80” and reflected “wide fluctuations in the time 2
required to complete his duties.” Id. Additionally, the district court in 3

Missel observed that the employee “was paid his weekly salary 4
regardless of absent time.” Missel v. Overnight Motor Transp

. Co. , 40 F. 5
Supp. 174, 1 76 (D. Md. 1941). 6

The Supreme Court held that the employee’s hourly “ regular 7

rate ” for the purposes of § 207 was the quotient of his fixed weekly salary 8
divided by the number of hours actually worked in a given week. M i s s e l , 9

316 U.S. at 580. This meant that the employee’s weekly wage constituted 10
the employee’s straight time pay for all hours worked in a given week

— 11

whether they were non

- overtime or overtime hours. See id. T his method 12
of calculating the employee’s “ regular rate ” resulted in an overtime 13
premium (to be paid for each overti me hour) of 50% of th e “ regular 14

rate. ” See id. In the parlance of FLSA litigation, the actual weekly wage 15
supplied the “time” in “time

- and

- a

- half” for all hours worked. 16

The Court’s opinion in Missel thus recognized the following 17
formula for determining the employee’s proper § 207 compensation. 181 9

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11 First, calculate the hourly “ regular rate ” for a given week by dividing 1

the fixed weekly wage by the total number of hours the employee 2
actually worked during that week . Secon d, divide th is hourly “ regular 3

rate ” for a given week in half . Third, multiply the hourly half

- rate by the 4

number of overtime hours and add that total to the employee’s fixed 5
weekly wage. See id. 6

Where the number of hours an employee works in a week varies, 7
that employee’s “ regular rate ” will fluctuate week to week, and weeks 8
with more hours will yield decreas ing “ regular rates. ” The Missel Court 9
reasoned that this result “is not an argument

. . . against this method of 10

de termining the regular rate” because “[a]part from the [FLSA] if there 11
is a fixed weekly wage regardless of the length of the workweek, the 12
longer the hours the less are the earnings per hour.” Id. 13

On the same date that the Supreme Court decided Missel , the 14

Court also issued an opinion in Walling v. A. H. Belo Corp. (“ Belo” ) , which 15

like Missel involve d the application of § 207 to a weekly wage. 316 U.S. 16

at 630

– 35. Th e employment agreement in Belo introduced an additional 17

wrinkle. T h at agreement precluded the employee from receiving any 181 9

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12 compensation beyond the fixed weekly rate until the employee worked 1
over 54 1⁄2 hours in a week (10 1⁄2 hours over the then

- prevailing FLSA 2

limit of 44 hours ). Id. at 628

– 29. 3

The agreement accomplished this result by setting the employee’s 4
“basic rate of pay” at $0.67 per hour for non

- overtime hours and setting 5

the rate for overtime hours at “not less than one and one

- half time such 6

basic rate , ” while also guaranteeing that the plaintiff “shall receive 7
weekly , for regular time and for such overtime as the necessities of the 8
business may demand, a sum not less than . . . $40.” Id. at 628. The Court 9
interpreted this provision as establishing

— and requiring payment of

— 10
a fluctuating overtime rate of at least 150% o f the “basic rate” for hours 11

worked between 44 and 54 1⁄2 hours. Id. at 631

– 32. For example, “if an 12
employee works 50 hours in a given week, . . . his $40 wage consists of 13
$29.48 for the first 44 hour[s] (44 [times] $.67) plus $10.52 for the 14
remaining six hours

. ” Id. at 632. 15

The Court acknowledged that “when the employee works less 16
than 54 1⁄2 hours during the week his pay is determined by the $40 17
guaranty” and that the “basic rate” and fluctuating overtime rate were 181 9

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13 in a sense “artificial [] .” Id. at 632

– 33. However, the Court reasoned that 1
“nothing in the [FLSA] forbids such fluctuation” and that Congress had 2
not “provide[d] a rigid definition of ‘regular rate.’” Id. at 632

– 34. 3

At the close of its opinion, the Court emphasized the security that 4
weekly guarantees offer . As the C ourt explained, 5

[w]here the question is as close as this one, it is well to follow the 6 Congressional lead and to afford the fullest possible scope to 7 agreements among the individuals who are actually affected. This 8 policy is based upon a common sense recognition of the special 9 problems confronting employer and employee in businesses 10 where the work hours fluctuate from week to week and from day 11 to day. Many such employees value the security of a regular 12 weekly income. They w ant to operate on a family budget, to make 13 commitments for payments on homes and automobiles and 14 insurance. 15
16 Id. at 635. In other words, according to the Court, the security of having 17
a $40 weekly wage offset any diminution in overtime pay that what 18
would become known as the FWW method might bring about. 19
Significantly, in the aftermath of Missel and Belo , the Supreme 20

Court decided a series of cases involving the application of § 207 to 211 9

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14 payment structures that did not include weekly guarantees. 2 A common 1
thread linking these cases is the Court’s effort to cabin the flexibility that 2

Belo promised employers to situations in whi ch a fixed weekly wage was 3
in fact present

. See, e.g. , Walling v. Helmerich & Payne , Inc. , 323 U.S. 37, 4

41

– 42 (1944)

. 5

These decisions culminated in Bay Ridge Operating Co. v. Aaron , in 6

which the Court expressly tied Belo to the presence of a weekly 7
guarantee. 334 U.S. 446, 462 (1948). The Court in Bay Ridge explained that 8

where “ guaranteed weekly wages were involved, we have re affirmed 9
[ Belo ] as a narrow precedent principally because of public reliance upon 10
a congressional acceptance of the rule there announced .” Id. 11

E

. 12
In 1968, the Department of Labor (DOL) issued an interpretive 13
rule, 29 C.F.R. § 778.114, elaborating on the method for calc ulating 14
overtime pay introduced in Missel and Belo . 33 Fed. Reg. 986, 990

– 91 (Jan. 15

2 See Walling v. Helmerich & Payne , Inc. , 323 U.S. 37 (1944); United States v. Rosenwasser , 323 U.S. 360 (1945); Walling v. Youngerman

- Reynolds Hardwood Co. , 325 U.S. 419 (1945); Walling v. Harnischfeger Corp. , 325 U.S. 427 (1945); Walling v. Halliburton Oil Well Cementing Co. , 331 U.S. 17 (1947); 149 Madison Ave. Corp. v. Asselta , 331 U.S. 199 (1947).1 9

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15 26, 1968). The rule labeled this approach “the ‘fluctuating workweek’ 1
method of overtime payment.” Id. at 991. 3 2
Subsection (a) explains how to apply the fluctuating workweek 3
(FWW) method and why it is an application of, as opposed to an 4
exception to, § 207: 5
An employee employed on a salary basis may have hours of work 6 which fluctuate from week to week and the salary may be paid 7 him pursuant to an understanding with his employer that he will 8 receive such fixed amount as straight time pay for whatever hours 9 he is called upon to work in a workweek, whether few or many. 10 Where there is a clear mutual understanding of the parties that 11 the fixed salary is compensation (apart from overtime premiums) 12 for the hours worked each workweek, whatever their number, 13 rather tha n for working 40 hours or some other fixed weekly work 14 period, such a salary arrangement is permitted by the [FLSA] if 15 the amount of the salary is sufficient to provide compensation to 16 the employee at a rate not less than the applicable minimum wage 17 rate for every hour worked in those workweeks in which the 18 number of hours he works is greatest, and if he receives extra 19 compensation, in addition to such salary, for all overtime hours 20 worked at a rate not less than one

- half his regular rate of pay. 21 Sinc e the salary in such a situation is intended to compensate the 22 employee at straight time rates for whatever hours are worked in 23 the workweek, the regular rate of the employee will vary from 24 week to week and is determined by dividing the number of hours 25
wor ked in the workweek into the amount of the salary to obtain 26

3 The Department of Labor revised 29 C.F.R. § 778.114 in 2011, but its text rem ained virtually the same as it was in 1968. Compare 29 C.F.R. § 778.114 (2011) , with 33 Fed. Reg. at 990

– 91. On June 8, 2020, following notice and comment, DOL issued a revised version of the regulation, with an effective date of August 7, 2020. 85 Fed. Reg. 34,970 (June 8, 2020).1 9

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16 the applicable hourly rate for the week. Payment for overtime 1 hours at one

- half such rate in addition to the salary satisfies the 2 overtime pay requirement because such hours have already been 3 comp ensated at the straight time regular rate, under the salary 4 arrangement. 5 6 29 C.F.R. § 778.114(a). 7
Subsection (b) applies the FWW method to a hypothetical 8
employee who, over the course of four weeks, “works 40, 37.5, 50, and 9

48 hours.” Id. § 778.114(b). The hypothetical employee receives a 10
guaranteed weekly rate of $600, exclusive of overtime premiums and 11
regardless of time actually worked

. Id. His total compensation for the 12
four weeks comes out to $600, $600, $660, and $650 , respectively

. Id. 13

Subsection (c) , reiterating much of the information contained in 14
subsection (a), emphasizes the prerequisites for using FWW: 15
The “fluctuating workweek” method of overtime payment may 16 not be used unless the salary is sufficiently large to assure that no 17 workweek will be worked in which the employee’s average 18 hourly earnings from the salary fall below the minimum hourly 19 wage rate applicable under the [FLSA] , and unless the employee 20 clearly understands that the salary covers whatever hours the job 21 may demand in a particu lar workweek and the employer pays the 22 salary even though the workweek is one in which a full schedule 23 of hours is not worked. Typically, such salaries are paid to 24 employees who do not customarily work a regular schedule of 25 hours and are in amounts agreed on by the parties as adequate 26 straight

- time compensation for long workweeks as well as short 27 ones, under the circumstances of the employment as a whole. 281 9

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17 Where all the legal prerequisites for use of the “fluctuating 1 workweek” method of overtime payment are present, the [FLSA] , 2 in requiring that “not less than” the prescribed premium of 50 3 percent for overtime hours worked be paid, does not prohibit 4 paying more. On the other hand, where all the facts indicate that 5 an employee is being paid for his overtime ho urs at a rate no 6 greater than that which he receives for nonovertime hours, 7 compliance with the [FLSA] cannot be rested on any application 8 of the fluctuating workweek overtime formula. 9
10 Id. § 778.114(c). 11
The DOL has also published opinion letters consideri ng the 12
implications of FWW for time

- off policies. Two opinion letters from May 13
1999 are representative. In the first, the DOL determined that 14
“deductions may be made from vacation or sick leave banks because of 15
absences for personal reasons or illness, as long as no deductions are 16
made from an employee ’ s salary,” even “where there is no paid leave to 17
substitute for employee absences.” Opin ion Letter, Dep’t of Labor, 1999 18

WL 1002399 , at *2 (May 10, 1999). The second May 1999 letter allows that 19
“disciplinary deductions, which do not cut into the required minimum 20
wage or overtime compensation, may be made for willful absences or 21

tardiness or f or a situation such as an employee being sent home from 22
work because of drunkenness.” Opinion Letter, Dep’t of Labor, 1999 WL 23

1002415 , at *2 (May 28, 1999) ; see also Opinion Letter, Dep’t of Labor, 2006 241 9

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18 WL 1488849 , at *1 (May 12, 2006) (noting that, except for disciplinary 1
actions, “an employer utilizing the fluctuating workweek method of 2
payment may not make deductions from an employee’s salary for 3
absences occasioned by the employee” )

. 4

* * * 5
Congress , however, has not codified the FWW method in the 6

FLSA

. And o ur C ourt has not previously addressed the FWW approach 7
in a published opinion. 8

II

. Application 9

A

. 10

Appellants allege that Bed Bath & Beyond (BBB) did not pay them 11
truly fixed weekly wages. In support of this allegation, appellants 12
identify six instances in which an appellant’s hours worked and credited 13
paid time off total ed fewer than 40 hours (the FLSA ’s applicable limit), 14
and in which that appellant received an amount less than that 15
appellant’s supposedly fixed weekly wage

. 4 16

4 As explained earlier, “credited paid time off” refers to time away from work tha t an employer agrees to compensate in the same manner as it would time spent working.1 9

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19 Out of the over 1, 5 00 weeks’ worth of pay record s submitted to 1
the district court, these are also the only work weeks

— e xcluding weeks 2
in which no work was performed

— in which appellants’ hours worked 3
and credited paid time off total ed fewer than 40 hours. In a nutshell, 4
therefore, appellants argue that they were not in fact recipients of 5
weekly wage guarantee s , because the only times their hours worked 6
dropped below the FLSA non

- overtime limit, BBB paid them an amount 7

less than their supposedly fixed weekly wages

. 8

The six weeks in question are as follows : 9

(a) Underpayment in three weeks which BBB claims resulted from 10
“payroll errors.” Thomas , 309 F. Supp. 3d at 133 . BBB issued payments 11
rectifying two of these payroll errors prior to the date on which 12
appellants filed their complaint. BBB rectified the third payroll error, 13

which amounted to $50 , on Januar y 5, 2018

. 14

(b) T he fourth underpayment occurred in a week when an 15
appellant received an amount less than that appellant’s weekly rate 16
because that appellant’s last day of employment with BBB fell in the 17

middle of a workweek. Id. 181 9

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20 (c) The fifth underpayment involve d BBB’s payment to Appellant 1
Reynosa for only 28.75 ho urs. Id. BBB and appellants agreed that this 2
reduction in pay resulted from unpaid vacation that Appellant Reynosa 3
negotiated with BBB at the time she was hired. Id. 4

(d) T he sixth and final underpayment occurred when BBB 5
reduced Appellant Frazer’s pay by o ne day on account of leave taken 6
pursuant to the Family and Medical Leave Act (FMLA). Id. Appellant 7
Frazer had been absent from work on FMLA leave throughout the entire 8
previous week, and his absence continued through the Monday of the 9
week in question. Id

. 10

T he Supreme Court decisions permitting the FWW method and 11
the DOL’s regulations thereafter make the existence of a fixed weekly 12
wage guarantee for straight time pay a core prerequisite for the FWW 13
method. Courts must therefore take seriously allegations that weekly 14

rates were not in fact guaranteed. Both Missel and Belo involved weekly 15
guarantees, and Belo included an extended discussion of the value of 16
such guarantees. Missel , 316 U.S. at 580; Belo , 316 U.S. at 631

– 35. And t he 17
Supreme Court’s later decisions applying § 207 to employment 181 9

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21 agreements lacking such guarantees further highlight the role that 1
weekly guarantees played in Missel and Belo

. E.g. , Bay Ridge Operating 2

Co. , 334 U.S. at 462. Moreover , 29 C.F.R. § 778.114 expressly requires a 3

“ clear [] understand [ing] that the salary covers whatever hours the job 4
may demand in a particular workweek ” and that “ the employer pays 5
the salary even though the workweek is one in which a full schedule of 6

hours is not worked .” 5 29 C.F.R. § 778.114(c). 7

On a more fundamental level, treating a guaranteed weekly wage 8
as the central prerequisite for use of the FWW method follows from the 9

method’s status as an application of and not an exception to § 207. It is 10
only because a guarante ed weekly wage serves as straight time pay for 11

all hours worked in a week regardless of the number of hours actually 12

worked that the Supreme Court permitted use of such a wage to 13
calculate an employee’s FLSA “regular rate” even when an employee’s 14

hours exc eed the non

- overtime limit. In contrast, a purported weekly 15

5 C ourts have generally found the version of 29 C.F.R. § 778.114 currently in effect to be a persuasive interpretation of the Supreme Court’s FWW decisions

. See, e.g. , O'Brien v. Town of Agawam , 350 F.3d 279, 287 n.15 (1st Cir. 2003). The weight to be given to 29 C.F.R. § 778.114 has not been squarely presented in this case.1 9

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22 rate that decreases when hours drop below a certain level cannot be a 1

fixed weekly wage for the purposes of § 207. R ather, it is an hourly rate 2
paid on a weekly basis and thus would not justify th e FWW method , 3

which leads to decreasing “ regular rates ” as hours actually worked 4

increase above the non

- overtime limit. 5

While courts must take seriously allegations that employees have 6
not received truly fixed weekly wages, such s kepticism should be just 7
that and nothing more, and we are satisfied that the district court 8
proceeded appropriately in this case . BBB’s correction, prior to the 9
commencement of litigation , of the payroll errors responsible for two of the 10
disputed weeks indicates that the th ree weeks involving payroll errors 11
are not cause for alarm. Although BBB did not resolve the third week 12

until after the district court issued its order , the amount ($50) was small 13
relative to the appellants’ weekly wages. Similarly, t he week in which 14

an ap pellant’s last day of employment fell in the middle of the week is 15

of no concern. BBB had no obligation to pay appellants their wages for 16
days after their employment ended

. 171 9

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– Thomas v. Bed, Bath & Beyond

23 The remaining two instances of alleged nonpayment of a fixed 1
weekly wage require more attention. At first glance, BBB’s agreement at 2
the time of Appellant Reynosa’s hiring to permit Appellant Reynosa to 3
take unpaid vacation during negotiated periods of time may seem to 4

flo ut the FWW method. Given BBB’s active negotiation of this 5
arrangement, it might even suggest the absence of an understanding 6
that appellants’ weekly wages were guaranteed. And such an 7
interpretation might perhaps be justified in a different context . But h e re, 8
where BBB provided multiple written notices explaining the FWW 9
method and where appellants do not identify any other instance of 10
similar arrangements for unpaid vacation, the record cannot support an 11

inference of actual absence of a fixed weekly wage

. 12

Appellant Frazer’s unpaid day while on FMLA leave is puzzling. 13

The D OL has promulgated a regulation permitting employers using the 14

FWW method to pay employees temporarily according to a different 15
method when employees take time off from work pursuant to the 16

FMLA. 29 C.F.R. § 825.206(b)

. Specifically, “the employer, during the 17
period in which intermittent or reduced schedule FMLA leave is 18
scheduled to be taken, may compensa te an employee on an hourly basis 191 9

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– Thomas v. Bed, Bath & Beyond

24 and pay only for the hours the employee works.” Id. In such 1
circumstances, an employee’s hourly rate is “determined by dividing 2
the employee ’ s weekly salary by the employee ’ s normal or average 3

schedule of hours worked duri ng weeks in which FMLA leave is not 4
being taken.” Id. However, “[i]f an employer chooses to follow this 5
exception from the fluctuating workweek method of payment, the 6
employer must do so uniformly, with respect to all employees paid on a 7
fluctuating workwe ek basis for whom FMLA leave is taken on an 8

intermittent or reduced leave schedule basis.” Id. 9

The district court did not assess BBB’s compliance with 29 C.F.R. 10
§ 825.206(b) , instead assuming for the purposes of its decision that this 11

one instance of alleg ed underpayment was inconsistent with the FWW 12

method. Thomas , 309 F. Supp. 3d at 136. I t is not clear from the record 13

whether BBB in fact met all the conditions of 29 C.F.R. § 825.206(b)

. 14

As with Appellant Reynosa’s negotiated unpaid vacation, 15
however, we think the totality of facts in the instant case preclude s an 16
inference from this single day of possible underpayment that BBB did 17

not generally pay appellants guaranteed weekly wages. This is 181 9

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– Thomas v. Bed, Bath & Beyond

25 especially true given that 29 C.F.R. § 825.206(b) expressly permits 1
temporary departures from the FWW method when employees take 2
leave pursuant to the FMLA. 3

We must , however, also view the six alleged instances of 4
nonpayment of a fixed weekly wage toge ther in the total context of the 5
over 1,500 weeks’ worth of pay records submitted in the case before us

. 6
That the six weeks in which appellants received less than their weekly 7

rates were

— according to appellants

— also the only weeks for which 8
appellants’ actual hours worked and credited paid time off totaled fewer 9
than 40 hours is perhaps appellants’ strongest argument. The essence of 10
a guaranteed weekly wage is an employee’s receipt of that wage for 11

weeks with less than 40 hou rs of actual work. And BBB does not 12
expressly identify any weeks during which an appellant received a full 13
weekly rate where that appellant’s actual hours worked and credited 14
paid time off total ed fewer than 40 hours. 15

Nevertheless, we agree with the distri ct court that appellants fall 16
short of establishing a genuine dispute of material fact. With a different 17
record, the absence of weeks with fewer than 40 hours of actual work 181 9

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– Thomas v. Bed, Bath & Beyond

26 and credited paid time off in which full pay was given might well weigh 1
heavily in our analysis

. Cf. Yourman v. Giuliani , 229 F.3d 124, 130 (2d Cir. 2
2000) (recognizing the relevance of many fact

- intensive factors for 3
evaluating allegedly impermissible pay deductions from salaried 4
employees). Here, however, we view as salient that the tw o more 5
puzzling instances of alleged underpayment bear no connection to each 6
other or to the other four disputed weeks. And w e also give weight to 7
BBB’s prompt correction prior to the initiation of litigation of the alleged 8
payroll errors that led to unde rpayment. After the corrections, these do 9

constitute instances of full payment when less than 40 hours were 10
worked. Moreover, BBB’s distribution of multiple clear documents 11
explaining the FWW method to appellants counters any possible 12
suggestion of hidden attempts to undercut a fixed weekly wage

. 13

Given all these circumstances, we hold that appellants have failed 14
to establish a genuine dispute of material fact as to whether appellants’ 15
weekly wages were truly fixed and guaranteed. 16

17

181 9

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– Thomas v. Bed, Bath & Beyond

27 B

. 1

Appellants also challenge the district court’s determination that 2
the limited fluctuations in their weekly schedules did not preclude use 3

of the FWW method. A ppellants contend (a) that non

- exempt 4
employees’ weekly hours must both fall below and rise above the FLSA 5

non

- ove rtime limit of 40 hours with some frequency in order for 6
employers to use the FWW method , and (b) that their weekly schedules 7

did not fluctuate in this manner

. 6 The district court rejected this 8
argument, concluding that appellants’ schedules need not fluctuate 9
above and below 40 hours and that appellants’ schedules were not fixed. 10

Thomas , 309 F. Supp. 3d at 137

– 38. 11

Appellants’ argument is unavailing. Nothing in § 207 , Missel , Belo , 12

or 29 C.F.R. § 778.114 compels fluctuation in weekly schedules above 13

and below 40 hours

. And, a s explained earlier, it is instead the weekly 14

6 In their reply brief before this C ourt, a ppellants also argue that their schedules did not flu ctuate at all. “[A]rguments not raised in an appellant’s opening brief, but only in [a] reply brief, are not properly before an appellate court

. . . .” McCarthy v. S.E.C. , 406 F.3d 179, 186 (2d Cir. 2005). Accordingly, we decline to consider whether the f luctuating workweek method requires some minimum degree of fluctuation in schedules

. We take no position on that issue , but we note that the latest revisions to 29 C.F.R. § 778.114 address the question

. See 85 Fed. Reg. at 34,9 92

.1 9

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– Thomas v. Bed, Bath & Beyond

28 guarantee that is foundational to the FWW method. Neither Missel nor 1

Belo restricts the FWW method to situations where employees’ weekly 2

schedules fluctuate above and below the limit on non

- overtime hours 3
set by the FLSA , and the formula that these decisions recognized 4
contains no internal principle for imposing such a limitati on. In Missel , 5
the Supreme Court reasoned simply that because a fixed weekly wage 6
may be divided by the number of hours actually worked, “[n] o problem 7
is presented in assimilating the computation of overtime for employees 8
under contract for a fixed weekly wage for regular contract hours which 9
are the actual hours worked, to similar computations for employees on 10
hourly rates

. ” 316 U.S. at 580. In Missel and Belo t he Court did apply this 11

formula to situations in which employees’ schedules were irregular , but 12
the formula’s logic in no way require d hours to fluctuate above and 13

below the FLSA limit

. 14

The facts of Missel itself, moreover, contradict the notion that 15

weeks with hours under the FLSA limit must balance weeks with hours 16

over the FLSA limi t . In Missel , the employee’s timesheets “show[ed] an 17
average workweek of 65 hours, with a maximum of 80

. ” 316 U.S. at 574. 18
With an average workweek well above the then

- prevailing non

- 191 9

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– Thomas v. Bed, Bath & Beyond

29 overtime limit, it would have been impossible for the employee’s weeks 1
with fewer hours than the limit to “make up” for the longer weeks. And 2

Missel expressly confronted the problem of decreasing marginal hourly 3
rates and dismissed that objection. Id. at 580 (“I t is true that the longer 4
the hours the less the rate and the pay per hour. This is not an argument, 5
however, against this method of determining the regular rate of 6
employment for the week i n question. Apart from the [FLSA] if there is 7
a fixed weekly wage regardless of the length of the workweek, the 8
longer the hours the less are the earnings per hour. ”)

. 9

Likewise, a lthough 29 C.F.R. § 778.114 uses the label “fluctuating 10
workweek,” the text o f the regulation observes merely that, “ [t]ypically , 11
such salaries are paid to employees who do not customarily work a 12
regular schedule of hours.” 29 C.F.R. § 778.114(c) (emphasis added). This 13
permissive language stands in contrast to the regulation’s clea r 14

command s with respect to what is required if the FWW method is to be 15

used. T he FWW method “ may not be used unless the salary is 16
sufficiently large to assure that no workweek will be worked in which 17
the employee’s average hourly earnings from the salary fall below the 18
minimum hourly wage

. ” Id. And FWW cannot be used “ unless the 191 9

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– Thomas v. Bed, Bath & Beyond

30 employee clearly understands that the salary covers whatever hours the 1
job may demand in a particular workweek and the employer pays the 2
salary even though the workweek is o ne in which a full schedule of 3

hours is not worked .” Id. 4

Appellants cite a few cases in which courts have suggested that 5
an employee’s schedule must fluctuate both above and below the FLSA 6

limit of 40 hours so that weeks with fewer hours and higher hourly 7
regular rates balance out weeks with longer hours and lower hourly 8
regular rates. Tellingly, all of these decisions also identify alternative 9
grounds for their holdings. For example, th e Seventh Circuit once 10
remarked that a group of employees “d[id] not fit the [FWW] model 11
because [they] . . . never work [ed] fewer than [their scheduled hours]” 12

and there wa s consequently “no shortfall of time (and correspondingly 13
higher hourly rate) in one pay period that might make up for longer 14

work in another.” Heder v. City of Two Rivers , 295 F.3d 777, 780 (7th Cir. 15
2002). But that decision turned at least in part

— if not entirely

— o n the 16

court’s conclusion that the employees ’ pay in fact decreased in weeks of 171 9

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– Thomas v. Bed, Bath & Beyond

31 fewer than 40 hours

. Id. Thus, the key guaranteed fixed weekly wage 1
requirement for the use of the FWW method was not met. 7 2

Accordingly, we reject appellants’ argument and hold that the 3

FWW method does not require weekly schedules to fluctuate above and 4

below the FLSA non

- overtim e limit of 40 hours per week

. So long as 5
employees receive as compensation for straight time pay a weekly rate 6
that is truly fixed and guaranteed, and so long as employers and 7
employees come to a clear mutual understanding regarding the FWW 8
method, employe rs may calculate overtime using th at method 9
irrespective of whether the number of hours employees work each week 10

fluctuates above and below the FLSA limit

. 8 11

7 The other cases

— all from district courts

— cited by appellants also provide alternate grounds for decision. See Costello v. Home Depot USA , Inc. , 944 F. Supp. 2d 199, 206

- 07 (D. Conn. 2013) (absence of a clear mutual understanding that the employer would

us e the FWW method); Hasan v. GPM Invs

. , LLC , 896 F. Supp. 2d 145, 150 (D. Conn. 2012) (same); Hunter v. Sprint Corp. , 453 F. Supp. 2d 44, 61 (D.D.C. 2006) (same); Spataro v. Gov’t Emp ’ rs Ins. Co. , No. 13

- cv
- 5020, 2014 WL 3890222, at *3 (E.D.N.Y. Aug. 6, 2014) (failure to allege nonpayment of overtime premium for hours worked in excess of 40); Blotzer v. L

- 3 Comm c’n s. Corp. , No. 11

- cv
- 274, 2012 WL 6086931, at *10

– 11 (D. Ariz. Dec. 6, 2012) (holding that the FWW method is inapplicable in misclassification cases).

8 Although the latest revisions to 29 C.F.R. § 778.114 do not go into effect until August 2020, we note that our holding today is consistent with the se revisions. See 85 Fed. Reg. at 34,975 (“The [DOL] is . . . clarifying that the regulation does not require that an employee’s hours must sometimes fluctuate below forty hours per week

. . . . ”).1 9

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– Thomas v. Bed, Bath & Beyond

32 C

. 1

Appellants also argue that BBB’s practice of permitting employees 2
to take days of paid time off on later dates after working on holidays or 3
previously scheduled days off is inconsistent with the FWW method. 9 4

And s ome courts have held that hours

- based bonuses or “shift 5

differentials” are inconsistent with the FWW method because such 6
amounts increase employees’ straight time pay, and 29 C.F.R. § 778.114 7
requires that employees receive “a fixed amount as straight time pay for 8

whatever hours [worked] . . . whether few or many .” O’Brien , 350 F.3d 9

at 288

– 90. 10

But even a ssuming arguendo that hours

- based bonuses preclude 11
use of the FWW method, BBB’s time

- off policy did not involve any such 12
bonuses. Under BBB’s policy, if an employee worked during a holiday 13
or on a previously scheduled day off, BBB would permit that employee 14

9 In their reply brief before this C ourt, appellants contend that BBB’s policy results in additional compensation because the New York Labor Law implies a private cause of action to recover the value of unused days of paid time off. We decline to consider this argument. McCarthy , 406 F.3d at 186.1 9

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– Thomas v. Bed, Bath & Beyond

33 to take a paid day off on a later date of the employee’s choosing. And , 1

as the district court held, this practice “does not lead to such an 2
employee’s receipt of any additional compensation for hours worked

. ” 3

Thomas , 309 F. Supp. 3d at 132. It therefore does not amount to payment 4

of hours

- based bonuses

. 5

Nothing in the FLSA, Missel , Belo , or 29 C.F.R. § 778.114 prohibits 6

BBB’s practice, and the DOL’s opinion letters applying § 778.114 suggest 7
that employers enjoy broad latitude in allocating days of paid time off, 8
so long as they do not dock employees’ pay. Far from docking 9
employees’ pay , BBB merely shuffled days of paid time off so as not to 10
penalize employees who worked on holidays or previously scheduled 11
days off. 10 12

CONCLUSION 13

We hold that appellants failed to establish a genuine dispute of 14
material fact regarding whether they received guaranteed weekly 15

10 We note that this holding also is consistent with the recently announced revisions to 29 C.F.R. § 778.114 , which “clarify that bonus payments, premium payments, and other additional pay are consistent with using the fluctuating workweek method of compensation” provided that such payments a re “included in the calculation of the regular rate” as appropriate under the FLSA

. See 85 Fed. Reg. at 34,974

.1 9

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– Thomas v. Bed, Bath & Beyond

34 wages, that the FWW me thod of calculating overtime compensation 1
does not require employees’ schedules to fluctuate above and below the 2

FLSA non

- overtime limit of 40 hours per week , and th at BBB ’s policy of 3
permitting employees to take days of paid time off on later dates after 4
working on holidays or previously scheduled days off is consistent with 5

the FWW method. W e therefore AFFIRM the district court ’s grant of 6
BBB’s motion for summary judgment and its deni al of appellants’ 7
motion for summary judgment

. 8