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 1½ times the employee's regular wage rate ( 29 CFR 778.114; see Heder v City of Two Rivs., Wis., 295 F3d 777, 779-780 [7th Cir 2002]). Section 142-2.16 of 12 NYCRR, upon which defendant relies, does not address overtime payments but merely defines the "regular rate" of an employee's wages. On the other hand, section 142-2.2 provides that under the state Minimum Wage Act (Labor Law § 650 et seq.), overtime shall be paid at 1½ 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 [ND NY 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.