With the December 1 effective date approaching for the Department of Labor’s increase in the minimum salary for claiming most overtime exemptions, many employers are considering moving employees to the fluctuating workweek (FWW) method of payment in order to reduce overtime liabilities. Under DOL regulations, in order to use FWW, the employer must provide the affected employees with a clear understanding of certain aspects of the pay plan. Last month in an unpublished opinion, the Eleventh Circuit Court of Appeals concluded that this understanding does not include an obligation on the part of the employer to translate its FWW policy into other languages.

In Garcia v. Yachting Promotions, Inc., the employee sued claiming entitlement to time and one-half overtime. At the time he was converted to FWW, his employer provided him with a written explanation of the plan, but he alleged that he never understood how the plan worked, and received confusing responses to questions he raised with his supervisors.

The Eleventh Circuit affirmed dismissal of the complaint. The court noted that the relevant DOL rule does not require that the employee understand all of the nuances of the FWW plan. Instead, the employer must provide a clear explanation of the fact that the employee will receive a salary that is guaranteed even if the employee does not work a standard workweek. In this case the plaintiff admitted during his deposition that he understood that he was paid on a salaried basis. The written explanation of the plan provided to the plaintiff confirmed this status, and given his knowledge of his salaried status, did not have to be translated into Spanish despite the employee’s limited English skills.

Employers implementing FWW should provide employees with a clear written explanation of the pay plan, along with examples of how the salary and half-time overtime premiums work, along with an opportunity to have questions answered. Although not required by the court in this case, if the employer has a significant percentage of the workforce with limited English skills, it may want to consider translating the written explanation into those employees’ native language.