[DO NOT PUBLISH]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.

____________________

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:17-cv-02826-JSM-SPF

____________________

Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM:

Hector Hernandez appeals the district court’s summary 

judgment for Plastipak Packaging, Inc. on his Fair Labor Standards 

Act overtime claim. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

We explained the relevant facts and legal landscape at length

in an earlier appeal in this case. See Hernandez v. Plastipak Packaging, Inc. (Hernandez I), 15 F.4th 1321 (11th Cir. 2021). But the

long and short of it is this: Hernandez worked for Plastipak for a 

fixed base salary of $1,965 every other week, plus performance 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 could calculate time-and-a-half pay. So 

Plastipak used the “fluctuating workweek method” to calculate his 

overtime pay for any given week. 

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The fluctuating workweek method accounts for the fact that 

when an employee works variable hours for a fixed weekly salary 

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 workweek 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 

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

week—then (2) multiplying 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 Fair 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 hours 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.

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full regular rate. Mathematically, this method would always 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 that 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 payments. 

Nevertheless, Hernandez sued Plastipak on the grounds that

he was entitled under the Fair Labor Standards Act to one and onehalf time pay for overtime hours, calculated as though he worked 

a fixed forty hours per week. We earlier held that, although 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 complied with other aspects of 19 C.F.R. section 778.114, the regulation approving the 

fluctuating workweek method. Id. Especially relevant was

whether the parties had “a clear mutual understanding” that Hernandez’s fixed salary was “compensation . . . for the 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 Act because the record showed 

that “the parties had a clear mutual understanding that [Hernandez’s] bi-weekly salary” was fixed regardless of what hours he 

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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 pay. 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 “there 

is 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 arguments 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 plainly 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, whether 

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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 violated federal regulations because 

it effectively denied him an overtime pay rate greater than his regular rate of pay. The 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 employers to 

pay more than they are required to for overtime hours. Under the 

Act, an 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 use 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. 

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That’s what Plastipak did. The method it used to calculate 

the overtime rate always resulted in an overtime rate more than 

twice what the standard fluctuating workweek method would produce. Id. at 1323. Paying more than it had to did not violate the 

Act.

AFFIRMED.

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