by Alexandra Sanchez
If you have never been to Publix, you are missing out on the eighth wonder of the world. If you have never eaten a Publix chicken tender sub, you simply have not lived. Besides the impeccable Publix deli, what is it that makes Publix such a wonderful place to shop? Unfortunately, it seems that the pleasure of shopping at Publix may be derived from its employees’ pain.
Recently, a former assistant department manager for Publix recently brought an action on behalf of current and former Publix associates against Publix. Claimants allege that Publix violated the Fair Labor Standards Act (“FLSA”). Plaintiffs are categorized as fluctuating workweek (“FWW”) associates.
Publix used a FWW method to calculate overtime pay for the employees. An FWW method is generally used by employers to divide a fixed weekly salary by the actual number of hours worked in the week. This calculation determines the week’s base hourly rate. Under a FWW method, overtime is paid by adding an additional halftime for each hour worked per week beyond forty hours.
The plaintiff employees assert that Publix calculated their wages in violation of FLSA. The employees claim that Publix failed to include quarterly and holiday bonuses, as well as other forms of compensation. “The retail bonus and holiday bonus are non-discretionary bonuses as that term is defined under the FLSA, and must therefore be included in the calculation of the regular rate for the work weeks covered by the bonus,” the employees said in their second amended complaint.
The workers also said the retailer’s fluctuating workweek plan did not comply with the FLSA because associates did not “receive a fixed weekly amount for all hours worked whether few or many in a work week, and instead received weekly pay in varying amounts due to the additional payment of additional compensation including but not limited to a retail bonus.”
Publix denied all liability, “maintain[ing] that the associates weren’t entitled to additional overtime pay and that is overtime pay plan met the requirements of the FLSA’s fluctuating workweek calculation method.” Publix reached a hefty settlement of $30 million. The settlement included roughly $5,000 each for the 1,580 employees who joined the litigation.
This is not the first time the world’s greatest supermarket has been subject to criticism for its labor and employment practices. Since 2009, Publix has refused to join the Fair Food Program. The Fair Food Program asks companies to voluntarily agree to pay an extra penny per pound of tomatoes. That extra money goes into a fund to make sure pickers get raises and safer workplace practices. Publix refuses to contribute to the fund, saying “none of this is the chain’s concern . . . suppliers are free to charge [Publix] more for tomatoes, which Publix would gladly pay.”
Next time your Publix chicken tender sub is being doused in buffalo sauce, think twice about whether that employee is being treated fairly.
 Ott v. Publix Super Mkt., Inc., 2012 U.S. Dist. LEXIS 103571 at *2 (M.D. Tenn. July 24, 2012).
 Lisa Nagele, Court Approves $30 Million Deal Settling Publix Managers’ FLSA Overtime Claims, Bloomberg (Feb. 6, 2014), http://laborandemploymentlaw.bna.com/lerc/2455/split_display.adp?fedfid=63016055&vname=lrwnotallissues&jd=a0g2h0e7x8&split=0
 See 29 C.F.R. § 788.114.
 Ott at *2.
 See Nagele, supra note 4.
 Scott Maxwell, Publix Remains a Holdout in Fair-Wage Farm Debate, Orlando Sentinel (Dec. 6, 2014, 2:39 PM), http://www.orlandosentinel.com/opinion/os-publix-farmworkers-tomatoes-scott-maxwell-20141206-column.html.