Kelly A. Knight is an attorney and mediator based in Los Angeles, CAlifornia. He handles matters throughout California.

Ninth Circuit holds that the Fair Labor Standards Act only requires the average hourly wage over a workweek to meet the minimum wage, even if some hours are paid at less than the minimum wage.

Short take:

In Douglas v. Xerox Business Services, LLC, 875 F.3d 884 (9th Cir. Nov. 15, 2017) (slip opinion linked here), the Ninth Circuit Court of Appeals recently held that the Fair Labor Standards Act ("FLSA") (which provides for federal minimum workplace protections and requirements, including federal minimum-wage obligations), requires only that the average hourly rate over the course of a workweek be at or above the minimum wage in order to satisfy the FLSA, as opposed to requiring each hour to be paid at or above the minimum wage.

The plaintiffs alleged that their employer, who had a very complicated system of paying many different hourly rates for different types of work, paid some of those hours at less than the minimum wage. The question was whether each hour must be paid at or above the minimum wage, or whether the average hourly rate during the workweek as a whole must meet the minimum-wage standard. Joining the Second, Fourth, Eighth, and D.C. Circuits, the Ninth Circuit held that the average hourly rate over the entire workweek is what must meet or exceed the minimum wage, not the hourly rate paid for each individual hour of work.

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