Average Hourly Wage Across a Workweek Is the Relevant Unit for Determining Pay Violation.


The U.S. Court of Appeals for the Seventh Circuit found that, for pay claims under the Fair Labor Standards Act (FLSA), the relevant unit is not wages per hour, but the average hourly wage across a workweek. In so doing, it joins the Department of Labor (DOL), as well as sister circuits – the Second, Fourth, Sixth, Eighth, Ninth and Eleventh.

In Hirst v. SkyWest, Inc., a group of flight attendants sued their employer for failure to pay the minimum wage for all hours worked, as required under the FLSA. The flight attendants were paid only for their time in the air, known in the industry as “block time,” but not for the “duty day,” which includes other time spent on the aircraft as well as time in airports before, after, and between flights. Consequently, looking hour by hour, they argued that they were not paid at least the minimum wage for all hours worked.

The Seventh Circuit noted that the FLSA does not identify the measure to be used in determining compliance, but longstanding DOL policy utilizes the workweek as “the standard period of time over which wages may be averaged” to determine compliance with the minimum wage obligation. In applying this measure, the Seventh Circuit found that none of the attendants had pleaded a  workweek in which they were paid an average wage of less than $7.25 per hour, and therefore their FLSA claims should be dismissed. It is worth noting, however, that the Seventh Circuit recognized that the flight attendants may have claims under state and local wage laws.