The Pennsylvania Supreme Court recently rejected the use of the fluctuating workweek method (FWW method) of overtime compensation under the Pennsylvania law. In doing so, the court distinguished the federal regulations that have explicitly adopted the FWW method. As explained by the court, this case addresses an ambiguity in the law that resulted from the inaction of the Pennsylvania legislature and the Department of Labor and Industry. Thus, until further regulations are promulgated, Pennsylvania employers should review and, if necessary, revise their pay practices for their nonexempt workforce.

In Chevalier. v. General Nutrition Centers, Nos. 22 WAP 2018, 23 WAP 2018, 2019 Pa. LEXIS 6521 (Pa. 2019), plaintiff Tawny Chevalier, a former salaried, nonexempt store manager, brought suit on behalf of all current and former store managers, assistant managers, senior store managers and other salaried, nonexempt employees of her former employer, General Nutrition Centers, Inc. and General Nutrition Corp. (collectively GNC). Chevalier argued that the FWW method used by GNC did not comport with the Pennsylvania Minimum Wage Act of 1968, 43 P.S. Sections 333.101-115 (PMWA), and the related regulations, which require that “each employee shall be paid for overtime not less than one and a half times the employee’s regular rate of pay for all hours in excess of 40 hours in a workweek.”