By: Gregory W. Homer and Marion B. Cooper
Methodically navigating the arcane maze of regulations surrounding the Fair Labor Standards Act (“FLSA”), the Court in Kirchoff v. Wipro, Inc., W.D. Wash., No. 2:11-cv-00568, 10/2/12, held that a technology consulting company (“Wipro”) did not violate the FLSA or Washington law by using the “Pay Period” – rather than the “Work Week” – method to calculate a fired senior manager’s salary for the first and last weeks of his employment.
Wipro provides consulting services to technology companies such as Microsoft Corp., Cisco Systems, Inc. and AT&T, Inc. Wipro employed Kirchoff as a Senior Manager at an annual salary of $140,000 from July 26, 2010 to January 27, 2011, when Wipro terminated his employment. Kirchoff then sued Wipro, claiming that he and other employees had been underpaid because Wipro used the “Pay Period” method to determine their pay for the first and last weeks of their employment.
An employer must generally pay an exempt employee his or her full salary for any workweek in which the employee works at all, regardless of the number of hours. However, Department of Labor (“DOL”) regulations provide that “[a]n employer is not required to pay the full salary in the initial or terminal week of employment. Rather an employer may pay a proportionate part of an employee’s full salary for the time actually worked in the first and last week of employment. In such weeks, the payment of an hourly or daily equivalent of the employee’s full salary for the time actually worked will meet the requirement.” 29 C.F.R. §541.602(b)(6). Additionally, “[w]hen calculating the amount of a deduction from pay allowed under paragraph (b) of this section, the employer may use the hourly or daily equivalent of the employee’s full weekly salary or any other amount proportional to the time actually missed by the employee.” 29 C.F.R. §541.602(c).
Under the “Pay Period” method of calculating an exempt employee’s pay for a partial first or last week of employment, the employer divides the employee’s annual salary into twenty-four semi-monthly pay periods to obtain a semi-monthly rate, which the employer then divides by the number of working days in the semi-monthly pay period to yield a daily rate for the pay period. The employer then multiplies the daily rate by the number of days actually worked by the employee to determine the final compensation for the first and last weeks of employment.
Under the “Work Week” method, the employer divides the employee’s annual salary by fifty-two to calculate the weekly rate and then divides that rate by five, the number of working days in a week, to determine the daily rate. The employer then determines the employee’s final pay by multiplying the daily rate by the number of days that the employee actually worked.
Kirchoff argued that 29 C.F.R. §778.113(b) requires employers to use the “Work Week” method. While acknowledging that the approach specified in this regulation “matches” the “Work Week” method, the Court rejected Kirchoff’s argument. According to the Court, Part 778, of which this regulation is a subpart, deals with Overtime Compensation, and Kirchoff’s dispute did not involve overtime, nor does the applicable regulation, 29 C.F.R. §541.602, incorporate or reference the overtime regulation. The Court further noted that Section 541.602(c) permits the employer to use “any amount proportional to the time actually missed by the employee.” The Court explained that Kirchoff’s interpretation that only the “Work Week” method is permitted would render the remaining language of the regulation meaningless, which runs counter to basic rules of statutory construction that presume that every word has some effect.
Focusing on Section 541.602(c), the Court found that Wipro’s method based on the percentage of days worked in the pay period was mathematically correct as a “proportionate part” of Kirchoff’s full salary. The Court granted summary judgment to Wipro on Kirchoff’s FLSA and state law claims.
Employers must be careful when addressing application of FLSA regulations and be aware that the FLSA provides employers with multiple options for calculating employees’ pay for the first and last weeks of work.