29 C.F.R. § 778.118
Commission paid on a workweek basis
When the commission is paid on a weekly basis, it is added to the employee's other earnings for that workweek (except overtime premiums and other payments excluded as provided in section 7(e) of the Act), and the total is divided by the total number of hours worked in the workweek to obtain the employee's regular hourly rate for the particular workweek. The employee must then be paid extra compensation at one-half of that rate for each hour worked in excess of the applicable maximum hours standard.
Notes of Decisions
Cited in 12
cases (5 in the last 5 years), 2006–2025 · leading case: Brantley v. Inspectorate Am. Corp., 821 F. Supp. 2d 879 (S.D. Tex. 2011).
Brantley v. Inspectorate Am. Corp., 821 F. Supp. 2d 879 (S.D. Tex. 2011). “117 and 29 C.F.R. § 778.118 . Lance , at *6-7. These commissions differ from the instant premiums, which are not governed by those regulations.”
Williams v. Gen. Nutrition Centers, Inc., 166 A.3d 625 (Conn. 2017). “Rather, the defendants' 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…”
Cerutti v. Frito Lay, Inc., 777 F. Supp. 2d 920 (W.D. Pa. 2011). “29 C.F.R. §§ 778.118 , 778.119. It relies upon Lance v.”
Melissa Compere v. Nusret Miami, LLC, 28 F.4th 1180 (11th Cir. 2022). “29 C.F.R. § 778.118 . And to be clear, this case is not about whether tips are part of the regular rate of pay (they are not, and neither party claims otherwise), but rather whether Nusret’s mandatory service charge is a tip.”
Thompson v. Bruister & Assocs., 967 F. Supp. 2d 1204 (M.D. Tenn. 2013). “29 C.F.R. § 778.118 . . The regulations go on to state that "[ojnly additional half-time pay is required in such cases where the employee has already received straight-time compensation at piece rates or by supplementary payments for all hours worked.”
Tiffey v. Speck Enter., Ltd., 418 F. Supp. 2d 1120 (S.D. Iowa 2006). “29 C.F.R. § 778.118 (a). Under this fluctuating workweek method, overtime may be paid at one-half the regular rate rather than the one and one-half rate prescribed in 29 U.”
Merritt v. Texas Farm Bureau (W.D. Tex. 2023). “29 C.F.R. § 778.118 . FLSA regulations also state that where it is not possible to allocate commission for each work week, the regular hourly rate can be calculated by other reasonable and equitable methods.”
Carlton v. JHook Investments Inc (E.D. Ark. 2019). “114; see 29 C.F.R. § 778.118 (stating that commissions are added to the base salary to determine a regular rate of pay).”
Coronado Jr. v. Flowers Food, Inc. (D.N.M. 2021). “That conclusion is borne out by 29 C.F.R. § 778.118 , which sets forth the method of calculating the regular rate as well as the overtime rate for employees who are paid by commission: When the commission is paid on a weekly basis, it is added to the employee’s other earnings…”
Mitchell v. NBT Bank, N.A. (Vt. Super. Ct. 2021). “” 29 C.F.R. § 778.118 . The regulations also account for situations in which the employer cannot determine the amount of commissions until a later time: 2 As noted above, Ms.”
Petersen v. INK 477, LLC (S.D. Fla. 2025). “(citing 29 C.F.R. § 778.118 ). In other words, total earnings divided by total hours worked equals the regular hourly rate.”
Lalli v. Gen. Nutrition Centers, Inc., 85 F. Supp. 3d 560 (D. Mass. 2015). “Lance, 2005 WL 1785315 , at *6 (“When commission is paid on a weekly basis it is added to the employee’s other earnings for that workweek_”) (quoting 29 C.F.R. § 778.118 ). Contrary to Plaintiffs argument, O’Brien does not hold that any variation in compensation disqualifies the…”
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