Williams v. General Nutrition Centers, Inc.

 COLE WILLIAMS ET AL. v. GENERAL
NUTRITION CENTERS, INC.,
ET AL.
(SC 19829)
Palmer, Eveleigh, McDonald, Espinosa, Robinson and D’Auria, Js.*
Syllabus
Pursuant to a state wage law (§ 31-76c), employees not exempt from over-
time pay must be paid at least one and one-half times their ‘‘regular
rate’’ of pay for each hour they work in excess of forty hours in a week.
Pursuant to a state wage regulation (§ 31-62-D4), when an employee is paid
a commission as a part of his or her earnings, the regular hourly rate
for the purpose of calculating overtime is to be determined by dividing
the ‘‘employee’s total earnings by the number of hours in the usual
[workweek] . . . .’’
The plaintiffs, who were employed as managers at the defendants’ retail
stores in Connecticut, and who received sales commissions in addition
to a base salary, sought damages from the defendants in federal court,
claiming that the defendants’ use of a certain method to calculate their
rate of pay for the purpose of determining the amount they were entitled
to in overtime pay violated state wage laws and regulations. The defen-
dants used the fluctuating workweek method of calculating overtime
pay, which is allowed under federal law, pursuant to which an employee’s
regular rate of pay is calculated by dividing total weekly pay by the
number of hours he or she actually works in a given week. The regular
rate of pay is then multiplied by one and one-half times for the hours
beyond forty that an employee works that week to determine his or her
overtime pay. The United States District Court certified to this court
the question of whether a Connecticut employer may use the fluctuating
workweek method to calculate overtime pay under state wage laws and
regulations. Held:
1. The state wage laws, including § 31-76c, did not preclude the defendants’
use of the fluctuating workweek method of calculating the plaintiffs’
overtime pay: the wage laws were silent with respect to how to calculate
the regular rate of pay for all types of employees other than delivery
drivers and sales merchandisers, and, by setting a specific formula for
only those categories of employees, the legislature apparently did not
intend to limit the formulas for calculating overtime pay for other catego-
ries of employees, including the plaintiffs; moreover, § 31-76c was nearly
identical to the federal overtime statute (29 U.S.C. 207 [a] [1]), which
has been construed by the United States Supreme Court to allow the
use of the fluctuating workweek method.
2. The plain meaning of the state wage regulations promulgated by the
Department of Labor, including § 31-62-D4, requires mercantile or retail
employers, such as the defendants, to determine an employee’s regular
rate of pay for the purpose of calculating overtime pay by dividing the
employee’s weekly pay by the hours the employee usually, rather than
actually, works in a week, and, accordingly, the wage regulations pre-
cluded the defendants’ use of the fluctuating workweek method to calcu-
late the plaintiffs’ overtime pay, as that method requires consideration
of the hours the employee actually works; by setting forth a formula
for retail employers, such as the defendants, to use when calculating
overtime pay, the regulations left no room for an alternative formula,
such as the fluctuating workweek method, the contrary interpretation
of the regulations urged by the defendants was not supported by the
text of § 31-76c and was unreasonable, the absence of enforcement
action by the Department of Labor to preclude the use of the fluctuating
workweek method, without more, did not establish an official agency
interpretation in favor of the use of such method that was entitled to
judicial deference, and, because the meaning of the regulations and
statutes governing overtime were plain and ambiguous, this court
declined to consider potentially contrary extratextual evidence such as
the legislative history of the wage laws.
Argued May 4—officially released August 17, 2017**
Procedural History
Action to recover damages for the defendants’ alleged
violations of Connecticut wage laws and regulations,
and for other relief, brought to the United States District
Court for the District of Connecticut, where the court,
Bryant, J., denied the defendants’ motion to dismiss;
thereafter, the court, Bryant, J., certified a question of
law to this court concerning the application of Connecti-
cut wage laws and regulations.
Anthony J. Pantuso III, with whom, on the brief,
were Richard E. Hayber, Joshua R. Goodbaum and
Stephen J. Fitzgerald, for the appellants (plaintiffs).
Robert W. Pritchard, pro hac vice, with whom were
Lori B. Alexander and, on the brief, Matthew K. Curtin,
for the appellees (defendants).
Opinion
D’AURIA, J. Connecticut law requires employers to
pay certain employees one and one-half times their
‘‘regular rate’’ of pay for any overtime hours they work.
General Statutes § 31-76c. Calculating overtime pay for
employees paid a fixed hourly wage is straightfor-
ward—their ‘‘regular rate’’ is their hourly wage, so they
must be paid one and one-half times their hourly wage
for each overtime hour worked. General Statutes § 31-
76c. But for employees paid in whole or in part by
commission, their average hourly rate will tend to fluc-
tuate, leaving them without a readily apparent regular
rate to use for calculating overtime pay. In the present
case, we are asked to consider how employers must
determine the regular rate for retail employees whose
pay fluctuates each week because they receive com-
missions.
I
This case comes to us on a certified question from
the United States District Court for the District of Con-
necticut. The factual record, although limited, contains
the following facts. The plaintiffs, Cole Williams and
Novack Lazare, worked as managers at General Nutri-
tion Centers (GNC) stores in Connecticut, which are
owned and operated by the defendants, General Nutri-
tion Centers, Inc., and General Nutrition Corporation.
The plaintiffs were paid a base weekly salary, plus com-
missions on sales of certain premium merchandise, and
they received overtime pay whenever they worked more
than forty hours in a week. Their base salaries were
fixed, but their commission payments fluctuated week
to week based on their sales.
The defendants calculated the plaintiffs’ overtime pay
using a method allowed under federal law, commonly
known as the fluctuating workweek1 method (fluctuat-
ing method). See Overnight Motor Transportation Co.
v. Missel, 316 U.S. 572, 579–80, 62 S. Ct. 1216, 86 L. Ed.
1682 (1942); 29 C.F.R. §§ 778.114 and 778.118 (2016).
This method is used to calculate the regular rate for
salaried employees whose work hours fluctuate week
to week and for employees whose pay varies each week
because of commissions. See Overnight Motor Trans-
portation Co. v. Missel, supra, 579–80; 29 C.F.R.
§§ 778.114 and 778.118 (2016). Because these employ-
ees do not have a consistent hourly rate of pay, their
regular rate is calculated each week by dividing their
total weekly pay by the number of hours they worked
during the week. See 29 C.F.R. §§ 778.114 and 778.118
(2016). This formula yields their regular rate for that
week, which is used to determine their overtime pay.
For example, if an employee has a weekly salary of
$500 and works fifty hours in a given week, his regular
rate is $10 per hour ($500/50), and his overtime rate is
$15 per hour ($10 x 1.5). Because the employee has
received only $10 per hour for each hour worked, he
must be paid an additional $5 for each overtime hour
to bring his pay to the required $15 per hour rate for
all hours in excess of forty.
Under the fluctuating method, the employee’s regular
rate, and, therefore, his overtime pay rate, decreases
as he works more overtime hours if he is paid a fixed
salary. See Overnight Motor Transportation Co. v. Mis-
sel, 316 U.S. 579–80; Stokes v. Norwich Taxi, LLC, 289
Conn. 465, 479–80, 958 A.2d 1195 (2008). For example,
suppose an employee is paid $500 per week and, in the
first week, works fifty hours and, in the second week,
works sixty hours. In the first week, the employee’s
regular rate is $10 per hour ($500/50); in the second
week, it is $8.33 per hour ($500/60). The employee is
entitled to one and one-half times his regular rate of
pay for overtime hours, meaning that his overtime rate
for the first week is $15 ($10 x 1.5) per overtime hour,
whereas his overtime rate in the second week is $12.50
($8.33 x 1.5) per overtime hour.
The plaintiffs brought an action against the defen-
dants in the District Court,2 claiming that the defen-
dants’ use of the fluctuating method to calculate the
plaintiffs’ regular rate for purposes of determining their
overtime pay rate violated Connecticut wage laws.3 The
plaintiffs rely on a state Department of Labor (depart-
ment) fair minimum wage order (wage order) governing
the calculation of overtime pay for mercantile (or retail)
employees.4 The plaintiffs contend that the wage order
prohibits use of the fluctuating method because it
requires use of an alternative formula. See Regs., Conn.
State Agencies § 31-62-D4. Under the plaintiffs’ interpre-
tation of the wage order, an employer must calculate
an employee’s regular rate of pay by dividing his total
weekly pay by the hours he usually works in a week,
not the hours he actually works. For the plaintiffs, who
claim they usually worked forty hour workweeks, this
would yield a higher regular rate of pay than the fluctu-
ating method would yield, which in turn would yield a
greater overtime rate. For instance, if an employee
made $500 per week, and worked fifty hours, his regular
rate under the fluctuating method would be $10 per
hour ($500/50), and he would be entitled to $15 for each
overtime hour. But, if he usually worked forty hours
per week, his regular rate would be $12.50 per hour
($500/40), and he would be entitled to $18.75 for each
overtime hour.
The plaintiffs moved for class certification on behalf
of certain other employees at GNC stores in Connecti-
cut. The District Court did not rule on the class certifica-
tion motion but, instead, certified a question to this
court asking ‘‘whether an employer may use the [fluctu-
ating] method to calculate overtime pay pursuant to
[Connecticut wage laws; see General Statutes § 31-58
et seq.] and the wage order’’ applicable to mercantile
employees. See Regs., Conn. State Agencies § 31-62-D1
et seq.5
We accepted the question, which requires us to inter-
pret Connecticut wage laws and regulations. Because
we do not have the benefit of either a prior judicial
or a time-tested agency construction of the applicable
provisions, we construe the statutes and regulations in
a plenary fashion.6 See, e.g., Sarrazin v. Coastal, Inc.,
311 Conn. 581, 610, 89 A.3d 841 (2014). Moreover,
because regulations have the same force and effect as
statutes, we interpret both using the plain meaning rule.
E.g., Alexandre v. Commissioner of Revenue Services,
300 Conn. 566, 578, 22 A.3d 518 (2011); see General
Statutes § 1-2z. Applying these principles, we conclude
that, although Connecticut wage laws do not prohibit
the use of the fluctuating method for employees such
as the plaintiffs, the wage order does.
II
We turn first to the relevant wage laws. Section 31-
76c sets forth the requirement that employees not
exempt from overtime pay must be paid at least one
and one-half times their regular rate of pay for each
hour they work in excess of forty hours in a week. That
section provides: ‘‘No employer, except as otherwise
provided herein, shall employ any of his employees
for a workweek longer than forty hours, unless such
employee receives remuneration for his employment in
excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which
he is employed.’’ General Statutes § 31-76c.
The wage laws governing overtime pay do not define
how to calculate the ‘‘regular rate’’ for employees like
the plaintiffs. Although § 31-76c requires overtime pay
of at least one and one-half times an employee’s regular
rate, it does not prescribe a method for determining
the regular rate of employees not paid by the hour.
Another provision, General Statutes § 31-76b (1),
defines ‘‘regular rate,’’ as used in § 31-76c, but it also
does not explain how to calculate that rate, except for
certain ‘‘delivery driver[s]’’ and ‘‘sales merchandiser[s]
. . . .’’ Instead, § 31-76b (1) explains that, when calcu-
lating an employee’s regular rate, an employer must
include ‘‘all remuneration’’ paid to the employee, with
certain exceptions. The last sentence of that provision
sets forth a calculation method that applies only to
employees ‘‘employed as a delivery driver or sales mer-
chandiser . . . .’’ General Statutes § 31-76b (1). Their
regular rate must be determined by dividing the total
weekly pay by forty. Id. Neither party in the present
case, however, claims that the plaintiffs are delivery
drivers or sales merchandisers.
Because the wage laws are silent as to how to calcu-
late the regular rate for all other types of employees,
nothing in the wage laws expressly prohibits use of the
fluctuating method, and its approach of dividing total
pay by actual hours worked, for employees who are
not delivery drivers or sales merchandisers. By setting
a specific formula for only one category of employees,
it further appears that the legislature did not intend to
limit the formulas that may be used for other categories
of employees.
In addition, § 31-76c, which sets forth the overtime
requirement, is nearly identical to the federal overtime
statute, 29 U.S.C. § 207 (a) (1) (2012); see Sarrazin v.
Coastal, Inc., supra, 311 Conn. 596 (observing that § 31-
76c ‘‘is indistinguishable from 29 U.S.C. § 207 [a] [1]’’);
and the United States Supreme Court has construed 29
U.S.C. § 207 (a) (1) to allow use of the fluctuating
method. See Overnight Motor Transportation Co. v.
Missel, supra, 316 U.S. 573 n.1, 579–80. We see no reason
to interpret § 31-76c differently from its federal counter-
part. Notably, the parties seem to agree on this point
and have instead focused their arguments on whether
the wage order allows use of the fluctuating method to
compute the plaintiffs’ regular rate.
We therefore conclude that the wage laws do not
prohibit use of the fluctuating method to derive an
employee’s regular rate, with the sole exception of cer-
tain delivery drivers and sales merchandisers. See Gen-
eral Statutes § 31-76b (1).
III
We next consider whether the wage order prohibits
the use of the fluctuating method for mercantile employ-
ees subject to its mandates. The wage order, promul-
gated by the department, applies to all employees in
the ‘‘[m]ercantile trade’’; (internal quotation marks
omitted) Regs., Conn. State Agencies § 31-62-D1 (c);
which includes employees in the retail sales business.
See Regs., Conn. State Agencies § 31-62-D1 (c). The
parties agree that the wage order governs the calcula-
tion of the plaintiffs’ overtime pay, but they disagree
whether it allows the use of the fluctuating method.
Like § 31-76c, the wage order requires that mercantile
employees be compensated at a rate of one and one-
half times their regular rate of pay for all overtime hours
worked in a week. Regs., Conn. State Agencies § 31-62-
D2 (c). The wage order requires that overtime pay be
based on the employee’s regular hourly rate of pay.
Regs., Conn. State Agencies § 31-62-D2 (c). Section 31-
62-D2 (c) of the Regulations of Connecticut State Agen-
cies provides that ‘‘[n]ot less than one and one-half
times the employee’s regular hourly rate shall be paid
for all hours in excess of forty in any work week.’’
And § 31-62-D4 of the Regulations of Connecticut State
Agencies provides in relevant part that employers ‘‘shall
establish a regular hourly rate for employees covered
by this wage order. . . .’’
For employees whose pay fluctuates because of com-
missions, and thus cannot be fixed in advance, the wage
order provides a formula for determining their regular
hourly rate each week to be used in calculating overtime
pay. See Regs., Conn. State Agencies § 31-62-D4. The
relevant section of the wage order provides in relevant
part: ‘‘When an employee is paid a commission in whole
or in part for his earnings, the regular hourly rate for
the purpose of computing overtime shall be determined
by dividing the employee’s total earnings by the num-
ber of hours in the usual work week as supported by
time records made in accordance with the provisions
of section 31-62-D8.’’7 (Emphasis added.) Regs., Conn.
State Agencies § 31-62-D4. The parties in the present
case disagree about what it means to divide by the
‘‘number of hours in the usual work week . . . .’’ Regs.,
Conn. State Agencies § 31-62-D4.
A
Turning first, as we must, to the text of the wage
order, we interpret the phrase ‘‘number of hours in the
usual work week’’ to refer to the number of hours an
employee usually works in a week. The wage order
does not define ‘‘usual work week,’’ so we look to the
common meaning of that phrase, as expressed in the
dictionary. See, e.g., Middlebury v. Connecticut Siting
Council, 326 Conn. 40, 49, 161 A.3d 537 (2017); see
also General Statutes § 1-1 (a). The term ‘‘workweek’’
commonly refers to the hours worked during a week; for
example, an employee who works a full-time schedule
might say he has a forty hour workweek. See Webster’s
Third New International Dictionary (2002) p. 2635
(defining ‘‘workweek’’ in relevant part as ‘‘the hours
. . . of work in a calendar week’’). The wage order
modifies ‘‘work week’’ with the adjective ‘‘usual,’’ so
the phrase ‘‘usual work week’’ naturally refers to the
hours usually worked in a week. The plain meaning of
‘‘usual work week’’ in the wage order thus requires
employers to divide the employee’s pay by the hours
usually worked in a week to calculate an employee’s
regular rate.
By setting forth its own formula for mercantile
employers to use when computing overtime pay, one
that requires them to divide pay by the usual hours
worked to calculate the regular hourly rate, the wage
order leaves no room for an alternative calculation
method. Although the wage order leaves it to the
employer and the employee to determine the employ-
ee’s compensation arrangement—whether and how
much the employee will be paid in salary and commis-
sions, if any—it does not leave room for them to agree
to a different method for calculating the employee’s
regular rate for the purpose of computing overtime pay.
The wage order thus precludes the use of the fluctuating
method’s divide by actual hours approach, at least for
employees covered by the wage order.
B
The defendants offer an alternative interpretation of
the meaning of ‘‘usual work week,’’ but we conclude
that it is not supported by the text and is unreasonable.
The defendants argue that ‘‘work week’’ does not refer
to the hours usually worked in a week but to the fixed
weeklong period of seven days that the employer has
designated for its weekly payroll accounting (e.g., Sun-
day through Saturday). They thus suggest that the wage
order’s command to divide by ‘‘the number of hours in
the usual work week’’ means that an employer must
divide pay by the number of hours the employee worked
during the fixed one week period that the employer
usually uses for payroll accounting. They claim that this
therefore requires employers to use a divide by actual
hours approach, just like the fluctuating method.
For support, the defendants rely on a federal interpre-
tive bulletin promulgated by the United States Depart-
ment of Labor, which explains that ‘‘[a]n employee’s
workweek is a fixed and regularly recurring period of
168 hours—seven consecutive 24-hour periods’’ that the
employer uses for its weekly payroll accounting. 29
C.F.R. § 778.105 (2016). The defendants argue that the
interpretive bulletin establishes that the term ‘‘work-
week’’ is a legal term of art and that we must apply its
specialized meaning instead of its dictionary definition
in interpreting the wage order.
We disagree that ‘‘workweek’’ has become a legal
term of art meaning only a fixed weeklong period, at
least under Connecticut law. Our overtime laws and
regulations have not adopted a definition similar to the
one in the interpretive bulletin. And our overtime laws
use the term in a manner that is inconsistent with the
defendants’ interpretation. Specifically, § 31-76c pro-
vides that ‘‘[n]o employer . . . shall employ any of his
employees for a workweek longer than forty hours
. . . .’’ (Emphasis added.) This reference to ‘‘work-
week’’ clearly refers to the hours an employee has
worked in the week and not to a fixed weeklong period.8
Moreover, the wage order, if read in light of the defen-
dants’ interpretation of workweek—i.e., a fixed week-
long period—would make no sense. Applied literally,
the defendants’ interpretation would require employers
to divide ‘‘by the number of hours in [a weeklong
period]’’; Regs., Conn. State Agencies § 31-62-D4; which
is 168 hours and not the actual number of hours worked,
as the defendants argue. This would result in an
absurdly minuscule regular rate. The defendants obvi-
ously do not advocate for this result. Rather, the defen-
dants’ interpretation would make sense only if the wage
order were rewritten to require the employer to divide
the employee’s total earnings by the number of hours
worked in the usual work week, which is the phrasing
used in the provision of the federal bulletin relied on
the defendants but not in the wage order. See 29 C.F.R.
§ 778.118 (2016) (‘‘the total [pay] is divided by the total
number of hours worked in the workweek’’ [emphasis
added]). Moreover, the defendants’ interpretation
would render the term ‘‘usual’’ superfluous, a result we
must avoid whenever possible. See, e.g., Connecticut
Energy Marketers Assn. v. Dept. of Energy & Environ-
mental Protection, 324 Conn. 362, 377–78, 152 A.3d 509
(2016). If ‘‘workweek’’ referred to a fixed and unvarying
period of seven days or 168 hours, there would be no
need to refer to the number of hours in the ‘‘usual’’
workweek because all workweeks would have the same
number of hours. We thus conclude that the defendants’
suggested interpretation is not a reasonable one that
the text supports.
Apart from their interpretation of the wage order’s
text, the defendants also argue that the legislature con-
sidered banning use of the fluctuating method for all
employees subject to overtime law and did not do so,
indicating that it intended to allow its use in Connecti-
cut. They point to the legislative history behind the
regular rate calculation for delivery drivers and sales
merchandisers in § 31-76b (1). The defendants argue
that, in earlier drafts, the legislature considered adopt-
ing a specific calculation for all employees that would
have curtailed use of the fluctuating method but ulti-
mately chose to limit the reach of the new calculation
to only delivery drivers and sales merchandisers.
Because we consider the meaning of the wage order
and the statutes governing overtime to be plain and
unambiguous, however, we have no justification for
considering this extratextual evidence. See General
Statutes § 1-2z.
The defendants also assert that the department views
Connecticut law as permitting use of the fluctuating
method. They observe that there is no record of any
enforcement action by the department to preclude use
of the fluctuating method by mercantile employers, indi-
cating that the department interprets the wage laws to
allow its use. The defendants thus suggest that we
should defer to this presumptive interpretation, but
such deference is not warranted in the present case.
Although we will, in certain circumstances, defer to an
agency’s interpretation of statutes and its own regula-
tions, we do so only if the agency interpretation is
adopted pursuant to its rule-making process or through
formal adjudication. See, e.g., Sarrazin v. Coastal, Inc.,
supra, 311 Conn. 610 n.19. The absence of enforcement
action by the agency, without more, does not establish
an official agency interpretation calling for judicial def-
erence. See id. In the present case, the parties have not
directed us to any formal interpretation by the depart-
ment, and we are aware of none.9
We therefore conclude that, for employees paid in
whole or in part with commissions, the plain meaning
of the wage order requires mercantile employers to
determine an employee’s regular hourly rate for the
purpose of calculating overtime by dividing the employ-
ee’s weekly pay by the hours the employee usually
works in a week.10 The employee must receive at least
one and one-half times this regular hourly rate of pay
for each overtime hour worked, taking into consider-
ation the amount of pay the employee already received
as actual, straight time pay.11 The wage order’s com-
mand to use a divide by usual hours method therefore
precludes use of the fluctuating method’s divide by
actual hours method, except, of course, when an
employee’s actual hours match his usual hours.
IV
In sum, we conclude that, although Connecticut’s
wage laws do not preclude use of the fluctuating
method, the plain meaning of the text in the wage
order does.
We answer the certified question, ‘‘No.’’
No costs shall be taxed in this court to any party.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** August 17, 2017, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
To be consistent with the spelling of the word in the eleventh edition
of Merriam-Webster’s Collegiate Dictionary, we spell the term ‘‘workweek’’
throughout this opinion as one word unless it appears as two words in
quoted material. There is no substantive difference between ‘‘workweek’’
and ‘‘work week’’ for purposes of our analysis.
2
The plaintiffs invoked the District Court’s diversity jurisdiction. See 28
U.S.C. § 1332 (a) (2012). The plaintiffs did not assert any claims under
federal law.
3
Our reference to Connecticut wage laws includes the provisions in chap-
ter 558 of the General Statutes.
4
Wage orders are essentially agency regulations, and we interpret them
as such. They were originally promulgated by the department pursuant to
statutory authority allowing wage boards to set fair minimum wage and
hour requirements for various trades. See generally General Statutes (Rev.
to 2013) §§ 31-61 through 31-65. Those requirements were then promulgated
as regulations by the department. The statutes authorizing the use of wage
boards to set minimum wages have since been repealed; Public Acts 2015,
No. 15-127, § 5; Public Acts 2013, No. 13-140, § 22; and this power now
resides with the Commissioner of Labor. See General Statutes § 31-60 (b).
Although the wage board procedure has been eliminated, the wage order
at issue in this case has not been rescinded by the legislature or the depart-
ment, and remains in effect. See Regs., Conn. State Agencies § 31-62-D1 et
seq.; see also General Statutes § 31-68 (a) (authorizing cause of action for
employer’s violation of any wage order). We interpret the wage order in the
same manner we would any other agency regulation. See generally Amaral
Bros., Inc. v. Dept. of Labor, 325 Conn. 72, 79–80, 155 A.3d 1255 (2017)
(interpreting wage order governing restaurant trade in same manner as
agency regulation).
5
We have slightly rephrased the certified question for clarity. We have
changed an abbreviation that the District Court used for the fluctuating
method. In addition, we have substituted ‘‘Connecticut wage laws; see Gen-
eral Statutes § 31-58 et seq.’’ for the Connecticut Minimum Wage Act, which
appeared in the District Court’s certification order. Our General Statutes
do not designate any of its provisions as comprising such an act. The District
Court did not provide a citation for this act, but a number of cases from
the District of Connecticut; e.g., Tapia v. Mateo, 96 F. Supp. 3d 1, 2 (D.
Conn. 2015); cite to the Connecticut Minimum Wage Act as General Statutes
§ 31-58 et seq. Accordingly, we have used this citation in our revision of the
certified question.
6
Although we will, in certain circumstances, defer to an agency’s official
interpretation of a regulation; see, e.g., Sarrazin v. Coastal, Inc., 311 Conn.
581, 610 n.19, 89 A.3d 841 (2014); as we explain in part III B of this opinion,
the parties have not provided us with any such official interpretation to
defer to in the present case.
7
Section 31-62-D8 of the Regulations of Connecticut State Agencies
requires employers to keep records concerning each employee who is not
exempt from overtime pay that indicate the employee’s name, address,
proof of age for minor employees, occupation, wages, and daily and weekly
hours worked.
8
Other labor statutes also use ‘‘workweek’’ in a manner that would be
inconsistent with the defendants’ interpretation. For example, General Stat-
utes § 31-12 (c) governs labor of minors and provides procedures for estab-
lishing ‘‘a work week of less than five days’’ for these employees. The General
Statutes contain other similar examples. See, e.g., General Statutes § 31-
76b (1) (defining ‘‘regular rate’’ and referencing the ‘‘maximum workweek’’
allowed by overtime law); General Statutes § 31-76e (permitting collective
bargaining agreements to require employees to work ‘‘a workweek in excess
of the maximum workweek applicable to such employee’’ as long as they
receive overtime pay); General Statutes § 31-76f (governing payment for
piece-rate employees who work ‘‘a workweek in excess of the maximum
workweek applicable to such employee’’); General Statutes § 31-362d (defin-
ing ‘‘minijob’’ to refer to ‘‘a job with a maximum work week of twenty-
five hours per week’’); see also General Statutes § 5-245 (a) (governing
compensation for state employees who work more hours than their ‘‘regular,
established workweek’’); General Statutes § 5-246 (a) (1) (governing com-
pensation for any state police member or officer ‘‘who performs work . . .
in addition to the hours of his regular workweek’’); General Statutes § 7-
292 (a) (permitting municipalities to ‘‘adopt an average work week of forty
hours’’ for police officers); General Statutes § 7-293 (setting ‘‘average work
week of not more than forty hours’’ for police officers); General Statutes
§ 7-304 (a) (allowing municipalities to adopt ‘‘an average work week of
fifty-six hours’’ for firefighters); General Statutes § 7-305 (setting maximum
‘‘average work week of not more than fifty-six hours’’ for firefighters);
General Statutes § 7-460c (allowing compensatory time for municipal
employees ‘‘for each hour worked in excess of the maximum workweek of
such employees’’).
In addition, other provisions in the wage order at issue and other depart-
ment regulations are inconsistent with the defendants’ interpretation. In
stating the one and one-half times overtime pay requirement for mercantile
employees, the wage order requires that ‘‘[n]ot less than one and one-half
times the employee’s regular hourly rate shall be paid for all hours in excess
of forty in any work week.’’ (Emphasis added.) Regs., Conn. State Agencies
§ 31-62-D2 (c). Similarly, another department regulation governs the filing
of apprenticeship applications for employees who intend to work ‘‘a substan-
tially shorter work week than is prevailing in the industry.’’ (Emphasis
added.) Regs., Conn. State Agencies § 31-51d-3 (b).
9
During our research, we discovered remarks from a department represen-
tative to a legislative committee indicating that the fluctuating method was
permitted under current law. The remarks were made while the legislature
considered adopting the formula for calculating the regular rate of certain
delivery drivers and sales merchandisers. See General Statutes § 31-76b (1).
The department representative testified concerning an earlier version of the
bill, indicating that an employer’s use of the fluctuating method was lawful,
and stating, ‘‘certainly we’d be happy to speak to the fact that what is being
done presently is not outside of the law. If it was, [the department] would
have been doing something about it.’’ Conn. Joint Standing Committee Hear-
ings, Labor and Public Employees, Pt. 3, 2003 Sess., p. 992, remarks of John
McCarthy, Connecticut Department of Labor Representative.
The parties have not relied on these remarks,, and they have not impacted
our interpretation of the wage order. The representative did not provide
any analysis or explanation for his opinion, or indicate whether he was
referencing federal or state law, or both. Nor did he specifically mention
the mercantile wage order or whether it allowed the fluctuating method.
Even if we were to assume his opinion related to the wage order, we do
not accord deference to an agency interpretation that is not adopted formally
through the agency’s rule-making process or adjudicative procedure. See,
e.g., Sarrazin v. Coastal, Inc., supra, 311 Conn. 608–11 and n.19 (no defer-
ence given to department interpretation expressed in guidebook established
for employers and employees). In addition, we are not aware of any authority
that would justify our reliance on an agency representative’s remarks to
the legislature to modify the plain meaning of a previously promulgated
agency regulation. In fact, we ordinarily apply a presumption against finding
an implicit repeal or modification of a regulation. See Amaral Bros., Inc.
v. Dept. of Labor, 325 Conn. 72, 85, 155 A.3d 1255 (2017).
10
In the present case, the plaintiffs claim their usual work week was forty
hours. This presents a question of fact for the District Court to address.
11
Here is an illustration of this calculation. Suppose an employee who
usually works forty hours per week actually worked fifty hours in a week,
and earned $400 base pay, plus an additional $100 in commissions, for a
total weekly pay of $500. In this scenario, the employee’s regular hourly
rate for the purpose of calculating overtime is $12.50 per hour ($500/40
usual hours). This differs from his actual rate of pay, which was $10 per
hour ($500/50 actual hours). The employee must be compensated at least
$18.75 for each overtime hour worked ($12.50 x 1.5). Because the employer
has already paid the employee at a rate of $10 for each hour worked,
including overtime hours, the employee needs an additional $8.75 for each
overtime hour to bring him to $18.75 per hour for each overtime hour. His
additional overtime pay is $87.50 ($8.75 x 10 hours of overtime).