(a) This part contains the Department of Labor's general interpretations with respect to the meaning and application of the maximum hours and overtime pay requirements contained in section 7 of the Fair Labor Standards Act of 1938, as amended (“the Act” or “FLSA”). The Administrator of the Wage and Hour Division will use these interpretations to guide the performance of his or her duties under the Act, and intends the interpretations to be used by employers, employees, and courts to understand employers' obligations and employees' rights under the Act. These official interpretations are issued by the Administrator on the advice of the Solicitor of Labor, as authorized by the Secretary (Reorg. Pl. 6 of 1950, 64 Stat. 1263; Gen. Ord. 45A, published in the Federal Register on May 24, 1950).
(b) The Department recognizes that compensation practices can vary significantly and will continue to evolve in the future. The Department also recognizes that it is not feasible to address all of the various compensation and benefits arrangements that may exist between employers and employees, both currently and in the future. In general, the FLSA does not restrict the forms of “remuneration” that an employer may pay—which may include an hourly rate, salary, commission, piece rate, a combination thereof, or any other method—as long as the regular rate is equal to at least the applicable minimum wage and compensation for overtime hours worked is paid at the rate of at least one and one-half times the regular rate. While the eight categories of payments in section 7(e)(1)-(8) are the exhaustive list of payments excludable from the regular rate, this part does not contain an exhaustive list of permissible or impermissible compensation practices under section 7(e), unless otherwise indicated. Rather, it provides examples of regular rate and overtime calculations under the FLSA and the types of compensation that may be excluded from regular rate calculations under section 7(e) of the FLSA.
[84 FR 68770, Dec. 16, 2019]
Notes of Decisions
Danny Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016).
· cites it 2× “224 ,1 which 1 Section 778.224 is an interpretative bulletin containing an “official interpretation[] .”
Matteo Brunozzi v. Cable Commc'ns, Inc., 851 F.3d 990 (9th Cir. 2017).
“” 29 C.F.R. § 778.1 . 7 . HB 3162 Enrolled, Oregon Legislative Information, 2009 Regular Session (available at: https://olis.”
Urnikis-Negro v. Am. Fam. Prop. Servs., 616 F.3d 665 (7th Cir. 2010).
“See 29 C.F.R. § 778.114 . It is among a number of rules comprising a broader interpretive bulletin issued in 1968 that memorializes the Department of Labor’s understanding of the meaning and application of the maximum hours and overtime pay requirements of the FLSA.”
Sara Conner v. Cleveland Cnty., NC, 22 F.4th 412 (4th Cir. 2022).
“See 29 C.F.R. § 778.1 (a) (explaining the intended purpose of the interpretations in part 778 is for use by “courts to understand employers’ obligations and employees’ rights under the [FLSA]”).”
Chavez v. City of Albuquerque, 630 F.3d 1300 (10th Cir. 2011).
“5 The Department of Labor’s (DOL) position is that vacation buy-back is not part of the regular rate, but sick leave buy-back is.”
Garcia v. Tyson Foods, Inc., 890 F. Supp. 2d 1273 (D. Kan. 2012).
“”); 29 C.F.R. § 778.1 (“This Part 778 constitutes the official interpretation of the Department of Labor with respect to the meaning and application of the maximum hours and overtime pay requirements contained in section 7 of the Act.”
Monahan v. Cnty. of Chesterfield, 95 F.3d 1263 (4th Cir. 1996).
· cites it 2× “See 29 C.F.R. § 778.1 (“This part 778 constitutes the official interpretation of the Department of Labor with respect to the meaning and the application of the maximum hours and overtime pay requirements contained in section 7 of the Act.”
Roberts v. State, 483 P.3d 212 (Ariz. Ct. App. 2021).
“§ 23- 392 and the applicable state regulations do not expressly refer to the Portal Act, we conclude that the explicit reference to “federal law” in that section along with the express incorporation of C.F.R. pts. 553 and 778 allow for reference to Parts 785 and 790 for guidance.”
Flores v. City of San Gabriel, 969 F. Supp. 2d 1158 (C.D. Cal. 2013).
· cites it 2× “Section 778.215(a)(5) is not a formal administrative regulation; rather, it is “an interpretive guideline, issued on the advice of the Solicitor of Labor and authorized by the Secretary, not an official regulation promulgated after notiee-and-comment rule making.”
— 29 C.F.R. § 778.1(a) — 1 case
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