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Court Finds Employer Entitled to Flexibility Under FLSA In Determining Employee’s “Workweek”

By Noel P. Tripp on December 11, 2015
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Under the Fair Labor Standards Act, covered employers must pay non-exempt employees overtime wages for hours worked in excess of forty in a workweek. To comply, while employers must define the workweek, they retain the flexibility to do so as they see fit, as demonstrated by venerable Brooklyn-based federal Judge Jack Weinstein in a new decision. Lopez v. Hollisco Owners’ Corp., 2015 U.S. Dist. LEXIS 160569 (E.D.N.Y. Nov. 30, 2015).

In Lopez, Judge Weinstein held that DOL interpretive bulletin 29 C.F.R. § 778.115 permits employers to schedule an employee’s “workweek” to “begin on any day and at any hour of the day,” for the purposes of computing weekly hours worked provided it is “consistently-designated.” In the Court’s view, this rule highlights the importance of “permit[ing] employers to exercise flexibility in scheduling their employees’ workweek.” Based on that analysis, the Court rejected Plaintiff Lopez’s claim that his workweek was necessarily Monday-to-Sunday, rather than Saturday-to-Friday, crediting unrebutted evidence submitted by the employer in the form of paystubs, time-sheets and an affidavit confirming that the latter was the employer’s consistently-designated workweek for payroll purposes.

Lopez highlights the importance of recordkeeping to wage-and-hour compliance and claim defense.

Photo of Noel P. Tripp Noel P. Tripp

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate…

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate in May 2005, he has practiced exclusively in employment law and has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principle focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws.

Mr. Tripp is a graduate of Dartmouth College (A.B. 1999), and Fordham Law School (J.D. 2006). Prior to attending law school, Mr. Tripp was a complex commercial litigation paralegal at a large national law firm in Los Angeles, California. He is admitted to practice in the state of New York.

Education

  • Fordham University, J.D., 2006
  • Dartmouth College, A.B., 1999

Admitted to Practice

  • New York, 2007
  • New York – E.D. N.Y., 2008
  • New York – S.D. N.Y., 2008
Read more about Noel P. TrippEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    Wage & Hour Law Update
  • Organization:
    Jackson Lewis P.C.

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