COLE WILLIAMS ET AL.
GENERAL NUTRITION CENTERS, INC., ET AL.
May 4, 2017
Anthony J. Pantuso III, with whom, on the brief, were Richard
E. Hayber, Joshua R. Goodbaum and Stephen J. Fitzgerald, for
the appellants (plaintiffs).
W. Pritchard, pro hac vice, with whom were Lori B. Alexander
and, on the brief, Matthew K. Curtin, for the appellees
Palmer, Eveleigh, McDonald, Espinosa, Robinson and
D'Auria, Js. [*]
to a state wage law (§ 31-76c), employees not exempt
from overtime pay must be paid at least one and one-half
times their ‘‘regular rate'' of pay for
each hour they work in excess of forty hours in a week.
to a state wage regulation (§ 31-62-D4), when an
employee is paid a commission as a part of his or her
earnings, the regular hourly rate for the purpose of
calculating overtime is to be determined by dividing the
‘‘employee's total earnings by the number of
hours in the usual [workweek] . . . .''
plaintiffs, who were employed as managers at the
defendants' retail stores in Connecticut, and who
received sales commissions in addition to a base salary,
sought damages from the defendants in federal court, claiming
that the defendants' use of a certain method to calculate
their rate of pay for the purpose of determining the amount
they were entitled to in overtime pay violated state wage
laws and regulations. The defendants used the fluctuating
workweek method of calculating overtime pay, which is allowed
under federal law, pursuant to which an employee's
regular rate of pay is calculated by dividing total weekly
pay by the number of hours he or she actually works in a
given week. The regular rate of pay is then multiplied by one
and one-half times for the hours beyond forty that an
employee works that week to determine his or her overtime
pay. The United States District Court certified to this court
the question of whether a Connecticut employer may use the
fluctuating workweek method to calculate overtime pay under
state wage laws and regulations.
state wage laws, including § 31-76c, did not preclude
the defendants' use of the fluctuating workweek method of
calculating the plaintiffs' overtime pay: the wage laws
were silent with respect to how to calculate the regular rate
of pay for all types of employees other than delivery drivers
and sales merchandisers, and, by setting a specific formula
for only those categories of employees, the legislature
apparently did not intend to limit the formulas for
calculating overtime pay for other categories of employees,
including the plaintiffs; moreover, § 31-76c was nearly
identical to the federal overtime statute (29 U.S.C. 207 [a]
), which has been construed by the United States Supreme
Court to allow the use of the fluctuating workweek method.
plain meaning of the state wage regulations promulgated by
the Department of Labor, including § 31-62-D4, requires
mercantile or retail employers, such as the defendants, to
determine an employee's regular rate of pay for the
purpose of calculating overtime pay by dividing the
employee's weekly pay by the hours the employee usually,
rather than actually, works in a week, and, accordingly, the
wage regulations precluded the defendants' use of the
fluctuating workweek method to calculate the plaintiffs'
overtime pay, as that method requires consideration of the
hours the employee actually works; by setting forth a formula
for retail employers, such as the defendants, to use when
calculating overtime pay, the regulations left no room for an
alternative formula, such as the fluctuating workweek method,
the contrary interpretation of the regulations urged by the
defendants was not supported by the text of § 31-76c and
was unreasonable, the absence of enforcement action by the
Department of Labor to preclude the use of the fluctuating
workweek method, without more, did not establish an official
agency interpretation in favor of the use of such method that
was entitled to judicial deference, and, because the meaning
of the regulations and statutes governing overtime were plain
and ambiguous, this court declined to consider potentially
contrary extratextual evidence such as the legislative
history of the wage laws.
to recover damages for the defendants' alleged violations
of Connecticut wage laws and regulations, and for other
relief, brought to the United States District Court for the
District of Connecticut, where the court, Bryant,
J., denied the defendants' motion to dismiss;
thereafter, the court, Bryant, J.,
certified a question of law to this court concerning the
application of Connecticut wage laws and regulations.
law requires employers to pay certain employees one and
one-half times their ‘‘regular rate'' of
pay for any overtime hours they work. General Statutes §
31-76c. Calculating overtime pay for employees paid a fixed
hourly wage is straight for-ward-their ‘‘regular
rate'' is their hourly wage, so they must be paid one
and one-half times their hourly wage for each overtime hour
worked. General Statutes § 31-76c. But for employees
paid in whole or in part by commission, their average hourly
rate will tend to fluctuate, leaving them without a readily
apparent regular rate to use for calculating overtime pay. In
the present case, we are asked to consider how employers must
determine the regular rate for retail employees whose pay
fluctuates each week because they receive commissions.
case comes to us on a certified question from the United
States District Court for the District of Connecticut. The
factual record, although limited, contains the following
facts. The plaintiffs, Cole Williams and Novack Lazare,
worked as managers at General Nutrition Centers (GNC) stores
in Connecticut, which are owned and operated by the
defendants, General Nutrition Centers, Inc., and General
Nutrition Corporation. The plaintiffs were paid a base weekly
salary, plus commissions on sales of certain premium
merchandise, and they received overtime pay whenever they
worked more than forty hours in a week. Their base salaries
were fixed, but their commission payments fluctuated week to
week based on their sales.
defendants calculated the plaintiffs' overtime pay using
a method allowed under federal law, commonly known as the
fluctuating workweek method (fluctuating method). See
Overnight Motor Transportation Co. v.
Missel, 316 U.S. 572, 579-80, 62 S.Ct. 1216, 86
L.Ed. 1682 (1942); 29 C.F.R. §§ 778.114 and 778.118
(2016). This method is used to calculate the regular rate for
salaried employees whose work hours fluctuate week to week
and for employees whose pay varies each week because of
commissions. See Overnight Motor Transportation Co.
v. Missel, supra, 579-80; 29 C.F.R.
§§ 778.114 and 778.118 (2016). Because these
employees do not have a consistent hourly rate of pay, their
regular rate is calculated each week by dividing their total
weekly pay by the number of hours they worked during the
week. See 29 C.F.R. §§ 778.114 and 778.118 (2016).
This formula yields their regular rate for that week, which
is used to determine their overtime pay. For example, if an
employee has a weekly salary of $500 and works fifty hours in
a given week, his regular rate is $10 per hour ($500/50), and
his overtime rate is $15 per hour ($10 x 1.5). Because the
employee has received only $10 per hour for each hour worked,
he must be paid an additional $5 for each overtime hour to
bring his pay to the required $15 per hour rate for all hours
in excess of forty.
the fluctuating method, the employee's regular rate, and,
therefore, his overtime pay rate, decreases as he works more
overtime hours if he is paid a fixed salary. See
Overnight Motor Transportation Co. v.Missel, 316 U.S. 579-80; Stokes v.Norwich Taxi, LLC, 289 Conn. 465, 479-80, 958 A.2d
1195 (2008). For example, suppose an employee is paid $500
per week and, in the first week, works fifty hours and, in
the second week, works sixty hours. In the first week, the
employee's regular rate is $10 per hour ($500/50); in the
second week, it is $8.33 per hour ($500/60). The employee is
entitled to one and one-half times his regular rate of pay
for overtime hours, meaning ...