ANDERSON v. IKON OFFICE SOLUTIONS INC (2007)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 3, 2006, which, to the extent appealed from, denied defendant's motion to dismiss the first cause of action in the complaint, unanimously affirmed, with costs.

In assessing the viability of plaintiff's claim for overtime wages based on violation of 12 NYCRR § 142-2.2, the court considered whether defendant had established compliance with the federal “fluctuating workweek” standard, and correctly found issues of fact.   Under the federal Fair Labor Standards Act of 1938 (29 USC § 201 et seq.), the fluctuating workweek standard is recognized as an exception to the general requirement that employers pay overtime at 1 1/212 times the employee's regular wage rate (29 CFR 778.114;  see Heder v. City of Two Rivers, 295 F.3d 777, 779-780 [7th Cir.2002] ).  Title 12 NYCRR § 142-2.16, upon which defendant relies, does not address overtime payments but merely defines the “regular rate” of an employee's wages.   On the other hand, § 142-2.2 provides that under the state minimum wage act (Labor Law § 650 et seq.), overtime shall be paid at 1 1/212 times the regular rate, subject to any exceptions in the federal statute (see Dingwall v. Friedman Fisher Assoc., P.C., 3 F.Supp.2d 215, 220 [N.D.N.Y.1998] ).   There are questions of fact as to whether the fluctuating workweek standard has been met.

We have considered defendant's remaining arguments and find them unavailing.