and Hour Division, Labor § 778.105

pay requirements of section 6 (min- hours worked by the employee for such imum wage and equal pay) but not employers during the workweek must those of section 7(a) are applicable. be totaled in determining the number [46 FR 7309, Jan. 23, 1981] of hours to be compensated in accord- ance with section 7(a). The principles § 778.102 Application of pro- for determining what hours are hours visions generally. worked within the meaning of the Act Since there is no absolute limitation are discussed in part 785 of this chap- in the Act (apart from the child labor ter. provisions and regulations thereunder) on the number of hours that an em- § 778.104 Each workweek stands alone. ployee may in any workweek, he The Act takes a single workweek as may work as many hours a week as he its standard and does not permit aver- and his employer see fit, so long as the aging of hours over 2 or more weeks. required overtime compensation is paid Thus, if an employee works 30 hours him for hours worked in excess of the one week and 50 hours the next, he maximum workweek prescribed by sec- must receive overtime compensation tion 7(a). The Act does not generally for the overtime hours worked beyond require, however, that an employee be the applicable maximum in the second paid overtime compensation for hours week, even though the average number in excess of eight per day, or for work of hours worked in the 2 weeks is 40. on Saturdays, Sundays, holidays or This is true regardless of whether the regular days of rest. If no more than employee works on a standard or the maximum number of hours pre- swing-shift and regardless of scribed in the Act are actually worked whether he is paid on a daily, weekly, in the workweek, overtime compensa- biweekly, monthly or other basis. The tion pursuant to section 7(a) need not rule is also applicable to pieceworkers be paid. Nothing in the Act, however, will relieve an employer of any obliga- and employees paid on a commission tion he may have assumed by contract basis. It is therefore necessary to de- or of any obligation imposed by other termine the hours worked and the com- Federal or State law to limit overtime pensation earned by pieceworkers and hours of work or to pay premium rates commission employees on a weekly for work in excess of a daily standard basis. or for work on Saturdays, Sundays, holidays, or other periods outside of or § 778.105 Determining the workweek. in excess of the normal or regular An employee’s workweek is a fixed workweek or workday. (The effect of and regularly recurring period of 168 making such payments is discussed in hours—seven consecutive 24-hour peri- §§ 778.201 through 778.207 and 778.219.) ods. It need not coincide with the cal- [46 FR 7309, Jan. 23, 1981] endar week but may begin on any day and at any hour of the day. For pur- § 778.103 The workweek as the basis poses of computing pay due under the for applying section 7(a). Fair Labor Standards Act, a single If in any workweek an employee is workweek may be established for a covered by the Act and is not exempt plant or other establishment as a from its overtime pay requirements, whole or different workweeks may be the employer must total all the hours established for different employees or worked by the employee for him in groups of employees. Once the begin- that workweek (even though two or ning time of an employee’s workweek more unrelated assignments may is established, it remains fixed regard- have been performed), and pay over- less of the schedule of hours worked by time compensation for each hour him. The beginning of the workweek worked in excess of the maximum may be changed if the change is in- hours applicable under section 7(a) of tended to be permanent and is not de- the Act. In the case of an employee em- signed to evade the overtime require- ployed jointly by two or more employ- ments of the Act. The proper method of ers (see part 791 of this chapter), all computing overtime pay in a period in

397

VerDate Mar<15>2010 09:47 Jul 27, 2010 Jkt 220111 PO 00000 Frm 00407 Fmt 8010 Sfmt 8010 Y:\SGML\220111.XXX 220111 jdjones on DSK8KYBLC1PROD with CFR § 778.106 29 CFR Ch. V (7–1–10 Edition)

which a change in the time of com- than one and one-half times such high- mencement of the workweek is made, er rate. Under certain conditions pre- is discussed in §§ 778.301 and 778.302. scribed in section 7 (f), (g), and (j), the Act provides limited exceptions to the § 778.106 Time of payment. application of the general standard of There is no requirement in the Act section 7(a) for computing overtime that overtime compensation be paid pay based on the regular rate. With re- weekly. The general rule is that over- spect to these, see §§ 778.400 through time compensation earned in a par- 778.421 and 778.601 and part 548 of this ticular workweek must be paid on the chapter. The Act also provides, in sec- regular pay day for the period in which tion 7(b), (i), (k) and (m) and in section such workweek ends. When the correct 13, certain partial and total exemptions amount of overtime compensation can- from the application of section 7(a) to not be determined until some time certain employees and under certain after the regular pay period, however, conditions. Regulations and interpreta- the requirements of the Act will be sat- tions concerning these exemptions are isfied if the employer pays the excess outside the scope of this part 778 and overtime compensation as soon after the regular pay period as is prac- reference should be made to other ap- ticable. Payment may not be delayed plicable parts of this chapter. for a period longer than is reasonably [46 FR 7309, Jan. 23, 1981] necessary for the employer to compute and arrange for payment of the amount § 778.108 The ‘‘regular rate’’. due and in no event may payment be The ‘‘regular rate’’ of pay under the delayed beyond the next payday after Act cannot be left to a declaration by such computation can be made. Where the parties as to what is to be treated retroactive wage increases are made, retroactive overtime compensation is as the regular rate for an employee; it due at the time the increase is paid, as must be drawn from what happens discussed in § 778.303. For a discussion under the contract (Bay of overtime payments due because of Ridge Operating Co. v. Aaron, 334 U.S. increases by way of bonuses, see 446). The Supreme Court has described § 778.209. it as the hourly rate actually paid the employee for the normal, nonovertime PRINCIPLES FOR COMPUTING OVERTIME workweek for which he is employed— PAY BASED ON THE ‘‘REGULAR RATE’’ an ‘‘actual fact’’ (Walling v. Youngerman-Reynolds Hardwood Co., 325 § 778.107 General standard for over- U.S. 419). Section 7(e) of the Act re- time pay. quires inclusion in the ‘‘regular rate’’ The general overtime pay standard in of ‘‘all remuneration for employment section 7(a) requires that overtime paid to, or on behalf of, the employee’’ must be compensated at a rate not less except payments specifically excluded than one and one-half times the reg- by paragraphs (1) through (7) of that ular rate at which the employee is ac- subsection. (These seven types of pay- tually employed. The regular rate of ments, which are set forth in § 778.200 pay at which the employee is employed and discussed in §§ 778.201 through may in no event be less than the statu- tory minimum. (The statutory min- 778.224, are hereafter referred to as imum is the specified ‘‘statutory exclusions.’’) As stated by applicable under section 6 of the Act, the Supreme Court in the Youngerman- except in the case of workers specially Reynolds case cited above: ‘‘Once the provided for in section 14 and workers parties have decided upon the amount in Puerto Rico, the Virgin Islands, and of and the mode of payment the American Samoa who are covered by determination of the regular rate be- wage orders issued pursuant to section comes a matter of mathematical com- 8 of the Act.) If the employee’s regular putation, the result of which is unaf- rate of pay is higher than the statutory fected by any designation of a contrary minimum, his overtime compensation ‘regular rate’ in the wage contracts.’’ must be computed at a rate not less

398

VerDate Mar<15>2010 09:47 Jul 27, 2010 Jkt 220111 PO 00000 Frm 00408 Fmt 8010 Sfmt 8010 Y:\SGML\220111.XXX 220111 jdjones on DSK8KYBLC1PROD with CFR