                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 18-1632


UNITED STATES DEPARTMENT OF LABOR; R. ALEXANDER ACOSTA,
Secretary of Labor,

                    Plaintiffs - Appellees,

             v.

FIRE & SAFETY INVESTIGATION CONSULTING SERVICES, LLC;
CHRISTOPHER HARRIS, Individually and as Owner of Fire & Safety
Investigation Consulting Services LLC,

                    Defendants - Appellants.


Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, District Judge. (1:17-cv-00025-IMK)


Argued: December 12, 2018                                    Decided: February 8, 2019


Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge
Gregory and Judge Thacker joined.


ARGUED: Joseph Lawrence Amos, Jr., MILLER & AMOS ATTORNEYS AT LAW,
Charleston, West Virginia, for Appellants. Rachel Goldberg, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Appellees. ON BRIEF: Karen H.
Miller, MILLER & AMOS ATTORNEYS AT LAW, Charleston, West Virginia, for
Appellants. Kate S. O’Scannlain, Solicitor of Labor, Jennifer S. Brand, Associate
Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Appellees.




                                          2
WYNN, Circuit Judge:

       Fire & Safety Investigation Consulting Services, LLC, (“Fire & Safety”) and

Christopher Harris (“Harris”), the owner of Fire & Safety, appeal the district court’s

determination that Fire & Safety violated the Fair Labor Standards Act (“FLSA”) by

failing to pay certain employees proper overtime compensation. At issue is whether Fire

& Safety’s payment system violated the FLSA by failing to pay for overtime. The

district court held that the payment system violated the FLSA because it used a blended

rate that functioned as the actual hourly rate for all hours worked, regardless of whether

those hours were overtime or non-overtime. We agree and therefore, affirm.

                                               I.

       In 2008, Harris founded Fire & Safety, 1 which provides fire investigation and

security guard services to the company’s clients in the oil and gas industry. In 2013, Fire

& Safety began employing individuals (“Consultants”) to provide onsite safety and

environmental consulting services in West Virginia and Pennsylvania.               Between

December 23, 2014, and December 6, 2016, Consultants were regularly scheduled to

work what is known in the industry as a “hitch.” J.A. 1266. Consultants assigned to a

“hitch” worked 12 hours per day for 14 consecutive days, followed by 14 consecutive

days off, resulting in a total of 168 hours worked during a full “hitch.” Consultants

sometimes worked a full, 168-hour hitch, and sometimes fewer than the full 168 hours.




       1
           We collectively refer to Harris and Fire & Safety as “Fire & Safety.”

                                               3
      Fire & Safety initially paid the Consultants on an hourly basis—a regular rate for

the first 40 hours worked in a workweek, and then overtime at one and one-half times

their regular rate for hours worked over 40 per workweek.            Fire & Safety later

transitioned to a different payment system based on a “hitch rate.” Under that system, if

the Consultants worked the full two-week hitch of 168 hours, or 84 hours per workweek,

Fire & Safety paid a fixed sum that allegedly reflected a regular rate and an overtime

rate—i.e., the regular rate for the first 40 hours a Consultant worked in a particular week

and one-and-a-half times the regular rate for the next 44 hours the Consultant worked

during the week. If the Consultants worked less than a full 168-hour hitch over the two-

week period, Fire & Safety adjusted the employee’s pay using a “blended rate.” Fire &

Safety calculated the blended rate by dividing the Consultant’s fixed hitch rate by 168

(the total number of hours worked in a normal hitch) and then multiplying that hourly

blended rate by the number of hours actually worked by the Consultant to obtain the

Consultant’s pay for that two-week period.

       A hypothetical example of a Consultant working at a purported regular rate of

$10/hour illustrates this payment scheme. Under Fire & Safety’s description of the hitch

payment structure, the Consultant’s fixed rate for a full 168-hour hitch would allegedly

be based on 80 hours of non-overtime (at $10/hour), for a total of $800, and 88 hours of

overtime (at $15/hour), for a total of $1,320, for a combined total of $2,120. If the

Consultant worked the full two-week, 168-hour hitch, he was paid $2,120—his hitch rate.

However, if the Consultant worked, say, only 48 hours of the hitch, he was paid using the

blended rate, obtained by dividing $2,120 by 168 hours; in our example, that results in a

                                             4
blended rate of $12.62 (rounded to the nearest cent).       For 48 hours of work, the

Consultant would then be paid $12.62 times 48, for a total of $605.76.

        In October 2015, an anonymous Consultant complained to the Department of

Labor’s Wage & Hour Division that Fire & Safety was violating the FLSA by failing to

pay overtime. A Wage & Hour Investigator assigned to the case ultimately determined

that Fire & Safety had failed to pay proper overtime and keep accurate records and

calculated that Fire & Safety owed significant back wages.           At the end of the

investigation, Fire & Safety, without admitting liability or agreeing to pay damages,

ceased use of the hitch rate payment scheme.

       On February 22, 2017, the Department of Labor filed a complaint against Fire &

Safety, alleging that Fire & Safety violated the FLSA by employing the Consultants for

workweeks longer than 40 hours per week without overtime compensation.                The

Department of Labor also alleged that Fire & Safety violated the FLSA by failing to

make and maintain adequate and accurate records of hours worked by the Consultants.

The Department of Labor sought back wages, liquidated damages, and an injunction.

      Following discovery, both parties filed motions for summary judgment. On May

3, 2018, the district court granted in part and denied in part the Department of Labor’s

motion for summary judgment and denied Fire & Safety’s motion for summary

judgment. The district court concluded that Fire & Safety violated the FLSA’s overtime

requirement by failing to pay the Consultants an overtime premium for their overtime

hours. The district court also concluded that Fire & Safety failed to keep proper records,

including records of the hours worked by each Consultant each day, in violation of the

                                            5
FLSA. The district court denied the Department of Labor’s request for injunctive relief

but granted $817,902.11 in back wages and $817,902.11 in liquidated damages, for a

total damages amount of $1,635,804.22. Fire & Safety timely appealed the district

court’s decision.

                                           II.

       We “review the district court’s grant of summary judgment de novo.” Morrison v.

Cty. of Fairfax, 826 F.3d 758, 765 (4th Cir. 2016) (citation omitted). A court may award

summary judgment only when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).

                                                 A.

       The FLSA is “best understood as the ‘minimum wage/maximum hour law.’”

Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 446 (4th Cir. 2015). Congress enacted

the FLSA “to protect all covered workers from substandard wages and oppressive

working hours.” Id. (quoting Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S.

728, 739 (1981)).

       As part of its overtime protections, the FLSA requires that covered employers pay

their employees “at a rate not less than one and one-half times the regular rate at which

[they are] employed” for any hours worked in excess of 40 hours per workweek. 29

U.S.C. § 207(a)(1). The “regular rate” includes “all remuneration for employment paid

to” the employee, apart from eight categories of payment not at issue here. 29 U.S.C. §

207(e); see also Flood v. New Hanover Cty., 125 F.3d 249, 251 (4th Cir. 1997) (“The

                                            6
employee’s ‘regular rate’ is the hourly rate that the employer pays the employee for the

normal, nonovertime forty-hour workweek.”) (quoting Walling v. Helmerich & Payne,

Inc., 323 U.S. 37, 40 (1944)). The FLSA’s overtime requirement “was intended to spread

employment by placing financial pressure on the employer and to compensate employees

for the burden of a workweek in excess of the hours fixed in the Act.” Calderon v.

GEICO Gen. Ins. Co., 809 F.3d 111, 121 (4th Cir. 2015) (quoting Helmerich & Payne,

323 U.S. at 40) (internal quotation marks omitted).

       To determine whether Fire & Safety’s payment scheme violated the FLSA, we

must first decide what constitutes the “regular rate” of compensation actually paid to the

Consultants, as that rate establishes the proper overtime compensation due. 29 U.S.C. §

207(a)(1); Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)

(describing the “regular rate” as the “keystone” of Section 207(a)(1)). The regular rate is

“the hourly rate that the employer pays the employee for the normal, non-overtime forty-

hour workweek.” Flood, 125 F.3d at 251 (citation omitted). When determining the

regular rate, courts are “required to look beyond that which the parties have purported to

do,” as the regular rate is an “actual fact.” 149 Madison Ave. Corp. v. Asselta, 331 U.S.

199, 204 (1947); see also 29 C.F.R. § 778.108 (stating that the regular rate “must be

drawn from what happens under the employment contract”).

       The Supreme Court’s ruling in Asselta guides our analysis.         In that case, a

collective bargaining agreement provided for a fixed weekly payment for regular




                                            7
employees working 46 hours per week and watchmen working 54 hours per week. 2

Asselta, 331 U.S. at 202. The employer in Asselta claimed that the fixed weekly payment

reflected both non-overtime and overtime compensation; instead of determining an

hourly rate of pay upon which the fixed weekly amount was based, the agreement

included a formula that derived the regular rate for non-overtime hours from the fixed

weekly amount and the employee’s scheduled hours. Id. at 202–03. However, the

evidence in Asselta established that the regular rate was in fact obtained by dividing the

weekly wage for the scheduled workweek by the number of hours in that scheduled

workweek. Id. at 204–05. Therefore, the agreement “made no adequate provision for

overtime.” Id. In other words, the hourly rate of pay at issue in Asselta remained the

same irrespective of whether an employee worked more than, less than, or exactly 46

hours.

         Crucially, the Supreme Court pointed out that even employees working fewer than

40 hours a week—or no overtime hours—were still paid using the same hourly rate of

pay that supposedly factored in overtime. Id. at 205. The Supreme Court found that such

compensation “considerably in excess of the formula rate” violated the FLSA, because

the “payment of ‘overtime’ compensation for non-overtime work raises strong doubt as to

the integrity of the hourly rate upon the basis of which the ‘overtime’ compensation is

calculated,” and is “evidence of an attempt to pay a pro-rata share of the weekly wage.”


         2
       We describe Asselta with reference to only the employees working 46 hours per
week, but the Supreme Court held that the same analysis applies to the watchmen
working 54 hours per week.

                                            8
Id. Accordingly, the Supreme Court concluded that for purposes of the FLSA, the

regular rate was the hourly rate the employer actually paid (the fixed weekly salary

divided by the 46 scheduled hours).

       Asselta establishes that in determining the regular hourly rate for purposes of the

FLSA, courts must look beyond the contractual agreement to actual pay practices. When

determining the regular hourly rate, courts examine whether the blended rate consistently

applies across the board, regardless of the number of hours actually worked in a week.

Especially significant is whether such a blended rate—which supposedly factors in

overtime compensation—is paid even when an employee does not work overtime hours.

Such schemes cast doubt on the “integrity of the hourly rate” upon which overtime

compensation is calculated and indicate that the blended rate actually serves as the

regular rate. Asselta, 331 U.S. at 205. Ultimately, “blended pay schemes that fail to

account for the actual number of regular and overtime hours that an employee works are

impermissible replacements for traditional overtime pay rates under the FLSA.” Lopez v.

Genter’s Detailing, Inc., 511 Fed. App’x 374, 375 (5th Cir. 2013).

       Turning to this case, we hold that the district court correctly concluded that Fire &

Safety’s use of the blended rate possesses the same defects as the impermissible payment

structure at issue in Asselta. In particular, the district court properly determined that in

practice, Fire & Safety’s blended rate operated as the regular rate for the purposes of

determining Consultants’ overtime compensation.

       To better demonstrate this conclusion, we turn to an example of the “actual

fact[s]” of Fire & Safety’s pay practices. Asselta, 331 U.S. at 204. According to Fire &

                                             9
Safety’s 2015 payroll records, one Consultant had an hourly regular rate of $23.58, and

his hitch rate was $5,000 per hitch. Fire & Safety argues that the hitch rate incorporated

both straight-time and overtime rates, pursuant to 29 C.F.R. § 778.309. Therefore, when

the Consultant worked a full hitch, as he did on the pay period ending January 23, 2015,

he was allegedly compensated for 80 non-overtime hours at $23.58/hour, and 88 overtime

hours at $35.37/hour (his overtime rate of $23.58 x 1.5).


    80 non-overtime hours x        $23.58/hour = $1,886.40

           88 overtime hours x     $35.37/hour = $3,112.56

                                   TOTAL         = $4,998.96 (rounded up to $5,000)


       We note that there are two ways to reach this $5,000 figure. First, it can be

obtained using Fire & Safety’s calculation that allegedly incorporates 80 non-overtime

hours at the Consultant’s regular rate and 88 hours at his overtime rate. However, the

$5,000 sum can also be reached if the Consultant’s blended rate of $29.76/hour—$5,000

divided by 168—actually operated as the regular rate. 3

       If we examine the Consultant’s compensation when he worked less than a full

hitch, it becomes clear that his blended rate of $29.76/hour actually operated as the

regular rate. For example, on the pay period ending January 9, 2015, the Consultant

worked only six 12-hour days (or 72 hours), rather than a full hitch. Had the Consultant


       3
         For ease of description, we have rounded this Consultant’s blended rate to the
nearest cent. But for purposes of calculating the owed back wages, see infra Part II.B,
the Department of Labor properly utilized rates with their full decimals.

                                            10
been compensated per his alleged regular rate of $23.58/hour, he would have received the

following for his 72-hour workweek:


     40 non-overtime hours x      $23.58/hour = $943.20

          32 overtime hours x     $35.37/hour = $1,131.84

                                  TOTAL          = $2,075.04


In fact, however, he received $2,142.86 for that six-day work period, which is his

blended rate ($29.76/hour) multiplied by 72 hours worked.

      Tellingly, the blended rate was also used when a Consultant worked fewer than 40

hours, in other words, when he worked no overtime at all. Consider another Consultant,

whose regular rate, as listed on Fire & Safety’s 2015 payroll, was $21.44/hour, with a

hitch rate of $4,545/hitch. Accordingly, his blended rate was $27.05 ($4,545 divided by

168 hours). 4 On the pay date ending September 18, 2015, that Consultant worked a

three-day period, or 36 hours. Had he been compensated using his purported regular rate,

he should have received the following for his 36-hour workweek:


     36 non-overtime hours x      $21.44/hour = $771.84


In fact, he was paid $973.93, which represents his blended rate:

     36 non-overtime hours x      $27.05/hour = $973.93



4
  Again, we note that the $27.05 blended rate is rounded to the nearest cent, but all
calculations were completed with the figure with all its decimals.

                                            11
       As the Supreme Court has noted, determining the regular rate is “a matter of

mathematical computation, the result of which is unaffected by any designation of a

contrary ‘regular rate’ in the wage contracts.” Youngerman-Reynolds Hardwood Co.,

325 U.S. at 424–25.      Further, under Asselta’s guidance, the payment of supposed

“overtime” compensation for non-overtime work evidences an impermissible attempt to

pay a “pro-rata share of the weekly wage.” Asselta, 331 U.S. at 205. This series of

calculations demonstrates that under Asselta, Fire & Safety’s blended rate in fact served

as the regular rate. Otherwise, when Consultants like those above worked less than a full

hitch, their wages would have properly accounted for their non-overtime and overtime

hours using their purported regular hourly rates, instead of their blended rates.

                                             B.

       Fire & Safety principally argues that its hitch rate compensation system complied

with the FLSA because the Department of Labor’s implementing regulations for the

FLSA, which post-date the Supreme Court’s decision in Asselta, expressly authorize

fixed sum payments for overtime work. Fire & Safety is correct that the Department of

Labor’s implementing regulations for the FLSA provide that when an employee works a

fixed number of overtime hours, the employer may pay the employee a fixed sum each

week. In particular, “where an employee works a regular fixed number of hours in

excess of the statutory maximum each workweek, it is, of course, proper to pay him, in

addition to his compensation for nonovertime hours, a fixed sum in any such week for his

overtime work, determined by multiplying his overtime rate by the number of overtime

hours regularly worked.” 29 C.F.R. § 778.309.

                                             12
      However, Section 778.309 applies only when an employee works a fixed number

of overtime and non-overtime hours, and therefore does not address the issue raised in the

instant case: whether the FLSA permits an alternative means of compensation, here, the

blended rate, when an employee works fewer than a fixed number of overtime hours. 5

      Significantly, in decisions post-dating the Department of Labor’s promulgation of

Section 778.309, the Second and Fifth Circuits have applied Asselta in holding unlawful

payment schemes similar to the one employed by Fire & Safety. In Adams v. Department

of Juvenile Justice, 143 F.3d 61 (2d Cir. 1998), the Second Circuit examined a pay

structure in which employees were paid a fixed salary for a 60-hour workweek. The

record included evidence that when an employee worked fewer than 60 hours, the

employee was compensated not by his regular hourly rate, but rather by a pro rata rate

derived from dividing the fixed salary for the 60-hour workweek by the number of hours

the employee worked. Id. at 69.

      For example, if an employee’s rate was $10/hour, the weekly salary for an

employee working a scheduled 60-hour workweek was $700 (($10 x 40 straight-time

hours) + ($15 x 20 overtime hours)). Id. at 70. However, the record appeared to indicate

that if an employee worked 59 hours, he was docked a pro rata rate of $11.67 ($700

      5
         Fire & Safety also argues that its payment structure comports with a provision in
the Department of Labor’s Field Operations Handbook (“FOH”), which permits lump-
sum overtime payments.                FOH, Ch. 32, ¶ 32j06, available at
https://www.dol.gov/whd/FOH/FOH_Ch32.pdf. However, that provision solely applies
for “limited period[s],” where employers compensate employees with a lump sum for a
“special job” for an estimated number of overtime hours. Id. This provision is
inapplicable for regularized work schedules that purportedly include overtime
compensation.

                                           13
divided by 60 hours), rather than one overtime hour’s worth of $15.00. Id. The Second

Circuit concluded that this discrepancy indicated that the employer did not “adhere

strictly to the formula rate.” Id.

       The Second Circuit ultimately remanded the case for further record development

on the employer’s pay docking practices. However, appealing to Asselta, the court stated

that the payment scheme would violate the FLSA if employees working fewer than 60

hours were docked “a pro rata share of their weekly wage,” instead of a “straightforward

calculation of hours worked multiplied by the formula hourly rate.” Id. at 69. Further,

the Second Circuit noted that even though this particular pro rata docking practice

appeared, at least on its face, to be more favorable to the employees, this did not prevent

the practice from being relevant in determining if the employer’s payment scheme

complied with the FLSA. Id. at 69 n.9.

       The Fifth Circuit similarly rejected an analogous pay scheme in Lopez v. Genter’s

Detailing, Inc., No: 3:09-CV-0553, 2011 WL 5855269 (N.D. Tex. Nov. 21, 2011), aff’d,

511 F. App’x 374 (5th Cir. 2013) (unpublished decision).          In that case, the court

considered whether the blended rate on the employee’s pay stubs—a fixed hourly rate for

both regular and overtime hours for a 96-hour, two-week period—complied with the

FLSA. Id. Because the employer never compensated the employee using the purported

regular rate when the employee worked fewer or greater than 40 hours per week, the

district court applied Asselta and concluded that the employer “never paid any amount to

any employee using the alleged real regular rate.” Id. at *4. Of particular importance,



                                            14
the employer paid the blended rate, which purportedly reflected overtime payments, even

when the employee failed to work any overtime hours. Id. at *3.

       Adams and Lopez stand in line with Asselta and our resolution of this case. Just as

in Adams and Lopez, Fire & Safety impermissibly paid its Consultants a uniform rate that

failed to properly account for the actual number of non-overtime or overtime hours.

Accordingly, Fire & Safety never paid its Consultants during the time period in question

using the purported regular rate. 6

       Fire & Safety contends that Asselta, Lopez, and Adams are inapposite because

unlike those cases, the “hitch” pay structure “was not designed to pay employees less

than they were entitled to receive.” Appellant’s Br. at 25. But such alleged lack of bad

faith cannot excuse a violation of the FLSA. The good-faith nature of an employer’s

action is relevant in a court’s determination of whether to award liquidated damages

under the FLSA, not in determining whether it violated the FLSA in the first place. See

Perez v. Mountaire Farms, Inc., 650 F.3d 350, 375 (4th Cir. 2011) (“[A] district court, in

its sound discretion, may refuse to award liquidated damages if ‘the employer shows to

the satisfaction of the court that the act or omission giving rise to such action was in good

faith and that he had reasonable grounds for believing that his act or omission was not a

       6
         Fire & Safety’s reliance on this Court’s unpublished opinion in Smith v.
Association of Maryland Pilots, 89 F.3d 829 (4th Cir. 1996) (per curiam) (unpublished
decision) is misplaced. In that case, an agreement between the employer and employees
showed an understanding that the monthly wage included overtime compensation, and
the actual payment practices reflected payment of that overtime compensation. Id.
However, here, unlike Smith, undisputed facts indicate that Fire & Safety’s actual
practice did not conform to its alleged agreement because Consultants’ pay did not
include overtime.

                                             15
violation of the [FLSA].’”) (quoting 29 U.S.C. § 260). Fire & Safety has not appealed

the district court’s award of liquidated damages, so any invocation of its good faith is

irrelevant to our discussion. Moreover, Asselta, Adams, and Lopez did not rely on

employers’ good faith—rather, they squarely rejected pay schemes analogous to the one

at issue here, wherein employers pay the same rate regardless of straight and overtime

hours.

         Because the “blended rate” operated as the regular rate within the FLSA, the

district court correctly concluded that Fire & Safety did not properly compensate its

Consultants for overtime.         This is so despite the blended rate’s apparent

“overcompensation” of the Consultants.         Fire & Safety emphasizes that when the

Consultants worked less than a full hitch, they received more under a blended rate than

they would have otherwise received had their purported regular rates been used.

However, this purported “overcompensation” is illusory.                The Consultants were

overcompensated only if we accept Fire & Safety’s fiction—that the blended rate did not

operate as the regular rate. Because the blended rate did in fact function as the regular

rate, and therefore should have been the baseline in calculating the overtime rate, it

becomes plain that Consultants should have received greater compensation than what

they received under Fire & Safety’s payment scheme.

         Consider again the Consultant working the 6-day, 72-hour shift described above.

Because that Consultant’s blended rate of $29.76/hour (rounded to the nearest cent) was

his regular rate, for the shift in question he should have received:



                                             16
    40 non-overtime hours x      $29.76/hour = $1,190.48

          32 overtime hours x    $44.64/hour = $1,428.57

                                 TOTAL          = $2,619.05 7


Instead, he was paid $2,142.86. Accordingly, for the pay period ending on January 9,

2015, that Consultant was undercompensated by $476.19.          Such undercompensation

occurred with respect to 70 Consultants in total. When employees already have received

non-overtime pay for all hours worked, as is the case here, “unpaid overtime

compensation” is due under the FLSA at 50% of the regular rate for the overtime hours

worked. Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 354–57 (4th Cir.

2011). For instance, regarding his example 72-hour shift, that Consultant would be owed

$14.88 (the blended rate of $29.76 multiplied by 0.5) x 32 (the number of overtime

hours), equaling $476.19, which matches the above figure determining his

undercompensation.

      Our holding guards against creative payment schemes in which employers

retroactively divide a fixed payment into non-overtime and overtime components to

demonstrate supposed compliance with the FLSA.           As the Department of Labor

regulations emphasize, the “Congressional purpose to effectuate a maximum hours

standard by placing a penalty upon the performance of excessive overtime work” would

be “defeated” if an employer “could merely label as overtime pay a fixed portion of such

      7
        Again, for ease of illustration, we have listed this Consultant’s blended rate as
$29.76, but we, like the Department of Labor, have done this calculation using the
blended rate with all its decimals.

                                           17
salary sufficient to take care of compensation for the maximum number of hours that

would be worked.” 29 C.F.R. § 778.310. To rule otherwise would permit employers to

invent payment schemes that fail to pay proper overtime and then post-hoc attempt to

reverse-engineer compliance with the FLSA. Cf. Acosta v. Min & Kim Inc., No. 15-CV-

14310, 2018 WL 500333, at *10 (E.D. Mich. Jan. 22, 2018) (noting that defendants’

“post-hoc reconstructions . . . do not evidence compliance with the FLSA”).            Such

“hypothetical retrospective construction” of a rate structure that supposedly includes

overtime thwarts “the goals of the [FLSA].” Brennan v. Valley Towing Co., 515 F.2d

100, 106 (9th Cir. 1975). Although the FLSA does not “impose upon the almost infinite

variety of employment situations a single, rigid form of wage agreement,” employers

must properly pay overtime compensation, no matter their chosen pay structure. Asselta,

331 U.S. at 203–04. Fire & Safety failed to do so.

       Finally, Fire & Safety attempts a last-ditch effort to save its payment scheme by

arguing that Consultants worked a full 168-hour hitch the majority of the time. But Fire

& Safety did not violate the FLSA solely on those occasions that the Consultants worked

less than a full hitch. Because the “blended rate” actually operated as the regular rate, the

Consultants are owed back wages for even those overtime hours worked during a full

168-hour hitch. And at any rate, we reiterate that violating the FLSA on a minority of

occasions does not excuse that violation.         Tellingly, Fire & Safety does not—and




                                             18
cannot—cite to a single case supporting its theory supposedly excusing “de minimis”

FLSA violations. 8

      In sum, because the record indicates that Fire & Safety improperly paid its

Consultants a uniform single rate for all hours worked, we affirm the district court’s

ruling that Fire & Safety violated the FLSA by failing to pay the Consultants overtime

compensation.

                                           III.

      We next turn to whether Fire & Safety complied with the FLSA’s recordkeeping

requirements. 9 The FLSA requires employers to “make, keep, and preserve” employee

records, as well as “the wages, hours, and other conditions and practices of employment”

for a time period outlined in the regulations. 29 U.S.C. § 211(c). The regulations require

that employers “maintain and preserve payroll or other records” of “[h]ours worked each

workday and total hours worked each workweek.”           29 C.F.R. § 516.2(a)(7). The

FLSA’s recordkeeping provisions are vital in ensuring employer compliance with the

      8
          Under the FLSA, the “de minimis” principle only comes into play when
determining whether an employee’s time worked is de minimis such that an employer
need not compensate her. See Perez, 650 F.3d at 375 (concluding that roughly 10
minutes per work shift spent donning protective gear are not de minimis and employees
are entitled to compensation).
        9
          We reject the Department of Labor’s position that Fire & Safety waived this
argument. In its response to the Department’s motion for summary judgment, Fire &
Safety argued that “there can be no claim that the Defendants failed to maintain proper
records in violation of the Act.” J.A. 1101. Although it did not cite the specific
regulation it now invokes on appeal, its argument is preserved. See Volvo Const. Equip.
N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 604 (4th Cir. 2004) (“In assessing
whether an issue was properly raised in the district court, we are obliged on appeal to
consider any theory plainly encompassed by the submissions in the underlying litigation.”
(citation omitted)).

                                           19
statute. See McFeeley v. Jackson St. Entm’t, LLC, 825 F.3d 235, 246 (4th Cir. 2016).

The district court concluded that Fire & Safety failed to maintain appropriate records

under the FLSA. For the following reasons, we agree.

      Fire & Safety contends that its records satisfied 29 C.F.R. § 516.2(c), which

provides that with respect to employees working on fixed schedules, employers may

maintain records that show the schedule of daily and weekly hours worked by the

employee, instead of the hours worked each day and workweek. In weeks in which an

employee adheres to the fixed schedule, the employer may indicate “by check mark,

statement or other method” that such hours were in fact actually worked. 29 C.F.R.

516.2(c)(1). However, the regulation also provides that “in weeks in which more or less

than the scheduled hours are worked,” the employer must show the “exact number of

hours worked each day and each week.” 29 C.F.R. § 516.2(c)(2) (emphasis added).

      The record demonstrates that when Consultants did not work the “fixed

schedule”—a full 168-hour hitch—Fire & Safety did not show the exact number of hours

worked each day and each week for every employee. Fire & Safety provides evidence

that they did so on three occasions—when three Consultants worked fewer than 168

hours, those hours were recorded. However, those examples do not show the exact

number of hours worked each day in the two-week period, as required by Section

516.2(c)(2), but rather that the Consultants worked fewer hours than 168 hours. And, for

the vast majority of Consultants, no hours at all were recorded when they worked less

than a full hitch. Indeed, a declaration from the Department of Labor’s Assistant District

Director overseeing the Wage & Hour Investigator in this case also indicates that Fire &

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Safety did not have records of the hours worked by each employee during each workday.

Apart from the three examples cited, Fire & Safety does not seriously dispute its

inadequate recordkeeping, and therefore this does not constitute a genuine dispute of

material fact warranting remand.

       Accordingly, Fire & Safety’s reference to the specific hours worked by employees

on three isolated occasions does not demonstrate compliance with the FLSA’s stringent

recordkeeping requirements. Therefore, we agree with the district court and hold that

Fire & Safety failed to make and maintain proper records under the FLSA.

                                            IV.

       The FLSA shields employees from precisely the type of payment scheme utilized

by Fire & Safety—one that appears to compensate employees for both non-overtime and

overtime but in reality, uses a single rate for all hours worked, regardless of whether they

are non-overtime or overtime hours. Upholding such a scheme and accepting Fire &

Safety’s retroactive justifications would undercut one of the fundamental purposes of the

FLSA: ensuring that employees are adequately paid for all overtime hours. Therefore,

for the foregoing reasons, we affirm the district court’s decision granting summary

judgment to the Department of Labor.

                                                                               AFFIRMED




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