[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 11608
Non

- Argument Calendar

____________________
HECTOR HERNANDEZ, on his own behalf and on behalf of those similarly situated,
Plaintiff

- Appellant,

versus PLASTIPAK PACKAGING, INC., a Foreign Profit Corporation,

Defendant

- Appellee.

____________________ USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 1 of 72 Opinion of the Court 22

- 11608 Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:17

- cv

- 02826

- JSM

- SPF

____________________ Before R OSENBAUM , L UCK , and A NDERSON , Circuit Judges.

P ER C URIAM : Hector Hernandez appeals the district court’s summary judgment for Plastipak Packaging, Inc. on his Fair Labor Standards Act overtime cla im. W e affirm

. FACTUAL BACKGROUND AND PROCEDURAL HISTORY We explained the relevant facts and legal landscape at length in an earlier appeal in this case. SeeHernandez v. Plastipak Packaging, Inc. ( Hernandez I ), 15 F.4th 1321 ( 11th Cir. 2021). But t he long and short of it is this: Hernandez worked for Plastipak for a fixed base salary o f $1 , 965 every other week , plus p erformance bonuses , holiday pay, and nightshift pay. Though Hernandez’ s base salary didn’t vary, the hours he worked each week did. And when he worked more than forty hours in one week, the Fair Labor Standards Act entitled him to overtime pay “ at a rate not less than one and one

- half times [his] regular rate ” of pay. 29 U.S.C. § 207(a). Because Hernandez’s weekly hours varied, he had no fixed hourly rate from which Plastipak cou ld calculate time

- and

- a

- half pay. So Plastipak used the “fluctuating workweek method” to calculate his overtime pay for any given week. USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 2 of 722

- 11608 Opinion of the Court 3 The fluctuating workweek method accounts for the fact that when an employee works variable hours for a fixed weekly s alary his “regular rate ” of prorated hourly pay also varies. See Hernandez I , 15 F.4th at 1322

– 33. Because the employee’s fixed salary already compensates him at the “regular rate” for the overtime hours he works, an employer using the fluctuating workwe ek method “need only pay for overtime hours at a rate of one

- half times the employee’s regular rate

— not at one and one

- half times.” Id. at 1322. Thus, an employer may satisfy the Fair Labor Standards Act by (1) dividing weekly salary by the total number of hours worke d

— to calculate the employee’s regular hourly rate for that week

— then (2) multiply ing one

- half that rate by the number of overtime hours the employee worked that week. This additional amount will compensate the extra one

- half time pay the Fai r Labor Standards Act requires. See Hernandez I , 15 F.4th at 1327 (citing
29 C.F.R. § 778.114(a) (2016 ) 1 ). Plastipak used a “more generous version of the fixed workweek method ” to calculate Hernandez’s overtime pay

. Id. at 1323. To calculate Hernandez’s regular rate, Plastipak divided his weekly salary by forty hours

— not the total number of hours he worked that week

. Then, instead of multiplying his overtime hours by only

one

- half the regular rate, it multiplied his overtime hour s by the

1 A new version of 29 C.F.R. section 778.114 became effective in 2020, but we decide this case based on the regulation effective when the case began. See Hernandez I , 15 F.4th at 1326 n.3. USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 3 of 74 Opinion of the Court 22

- 11608

full regular rate. Mathematically, this method would alway s result in an overtime rate more than twice what the standard fluctuating workweek method would produce. Plastipak outlined its method for calculating overtime pay in a salary policy tha t Hernandez signed when he began working there. The salary policy stated that Hernandez’s base salary would be constant

— regardless of the hours he worked

— and explained that Plastipak used the fluctuating workweek method to calculate only his overtime paym ents. Nevertheless, Hernandez sued Plastipak on the grounds that he was entitled under the Fair Labor Standards Act to one and one

half time pay for overtime hours, calculated as though he worked a fixed forty hours per week. We earlier held that
, al though Hernandez received additional payment for working nights or holidays, his base salary was still “fixed” within the meaning of federal labor law

. Id. at 1329. We then remanded for the district court to determine whether Plastipak’s pay scheme compl ied with other aspects of 19 C.F.R. section 778.114, the regulation approving the fluctuating workweek method

. Id. E specially relevant was whether the parties had “ a clear mutual understanding ” that Hernandez’s fixed salary was “compensation

. . . for th e hours worked each workweek, whatever their number.” 29 C.F.R. § 778.114 (2016)

. The district court found, on remand
, that Plastipak had complied with the Fair Labor Standards A ct because the record showed that “the parties had a clear mutual understandi ng that [Hernandez’s] bi

- weekly salary” was fixed regardless of what hours he USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 4 of 722

- 11608 Opinion of the Court 5

worked. It also concluded that Plastipak correctly applied the fluctuating workweek method because Hernandez’s overtime rate was always more than one

- half of his fixed rate of p ay . The district court thus granted Plastipak’s motion for summary judgment

. Hernandez timely appealed.
STANDARD OF REVIEW We review de novo an order granting summary judgment. See Carithers v. Mid

- Continent Cas. Co. , 782 F.3d 1240, 1245 (11th Cir. 2015). A party is entitled to summary judgment when “ thereis no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law .” Fed. R. Civ. P. 56(a).
DISCUSSION Hernandez raises two a rguments on appeal . First, he contends the district court erred when it found the parties had a clear mutual understanding that his base salary was fixed regardless of the hours he worked in a given week. The parties, he says, had no mutual agreement his salary was fixed because Plastipak’s salary policy compensated him for forty hours per week, not a variable number of hours per week. Hernandez’s first argument fails because Plastipak’s salary policy, which Hernandez agreed to and signed, stated plainl y that Hernandez would “be paid a fixed weekly salary for a fluctuating workweek.” The policy then repeated, in bold, that Hernandez would “receive a fixed weekly salary as straight time pay for whatever hours [he was] called upon to work in a workweek, w hether USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 5 of 76 Opinion of the Court 22

- 11608 few or many.” As the district court explained, “[t]he record reflect[ed] that [Hernandez] clearly understood that he would receive [his] fixed salary as straight time pay for all the hours he worked in any week, whether fewer or greater than [forty ] hours.” There is no contrary evidence in the record. Second, Hernandez argues that Plastipak ’s more generous fluctuating workweek method violate d federal regulations because it effectively denie d him an overtime pay rate greater than his regular rate of pay. T he only permissible application of the fluctuating workweek method , he says, is to calculate overtime by dividing a fixed base salary by the total number of hours worked

— not a set forty hours
, like Plastipak did.
But the overtime rate in the Fair Labor Standards Act is a floor
, not a ceiling. The Act and its regulations allow e mployer s to pay more than they are required to for overtime hours. Under the Act, a n employer ’s overtime rate must be “not less than” the one set by Congress

. See 29 U.S.C. § 207(a). And , under the regulations, “[w]here all the legal prerequisites for u se of the ‘fluctuating workweek ’ method of overtime payment are present, the Act, in requiring that ‘not less than’ the prescribed premium of [fifty] percent for overtime hours worked be paid, does not prohibit paying more.” 29 C.F.R. 778.114(c) (2016)

. Applying the regulation in Hernandez I
, we explained that “[n]othing in the plain language of the regulation removed Hernandez from [the fluctuating workweek’s] scope just because Plastipak paid him more .

. . .” 15 F.4th
at 1328. USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 6 of 722

- 11608 Opinion of the Court 7

That’s what Plastipak did. The method it used to calculate the overtime rate always result ed in an overtime rate more thantwice what the standard fluctuating workweek method would produce. Id. at 1323. Paying more than it had to did not violate the Act.
AFFIRMED. USCA11 Case: 22-11608 Document: 38-1 Date Filed: 01/23/2023 Page: 7 of 7