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[DO NOT PUBLISH]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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2 Opinion of the Court 22-11608
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 Pack-
aging, 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 bo-
nuses, 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 Hernan-
dez I, 15 F.4th at 1322–33. Because the employee’s fixed salary al-
ready 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 work-
week 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 fluctuat-
ing 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 one-
half time pay for overtime hours, calculated as though he worked
a fixed forty hours per week. We earlier held that, although Her-
nandez received additional payment for working nights or holi-
days, 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 as-
pects 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 Her-
nandez’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 com-
plied with the Fair Labor Standards Act because the record showed
that “the parties had a clear mutual understanding that [Hernan-
dez’s] bi-weekly salary” was fixed regardless of what hours he
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worked. It also concluded that Plastipak correctly applied the fluc-
tuating 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 en-
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
DISCUSSION
Hernandez raises two arguments on appeal. First, he con-
tends 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 what-
ever 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 re-
flect[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 reg-
ular 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 regula-
tions, “[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] per-
cent 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 work-
week’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 pro-
duce. Id. at 1323. Paying more than it had to did not violate the
Act.
AFFIRMED.
