Employers should take steps to lower the risk of a mistaken back-pay ruling in an FLSA "failed exemption" lawsuit.

We have said for a while now that a "fluctuating workweek" pay plan might suit some employers' needs as to workers whom they will no longer treat as overtime-exempt in light of the U.S. Labor Department's coming federal Fair Labor Standards Act exemption changes.

A decision by the 5th Circuit U.S. Court of Appeals both illustrates and exacerbates the morass into which the calculation of overtime pay has descended in so-called "failed exemption" cases under the FLSA.