(a) Overtime premiums are those defined by the statute. The various types of premium payments which provide extra compensation qualifying as overtime premiums to be excluded from the regular rate (under sections 7(e)(5), (6), and (7) and credited toward statutory overtime pay requirements (under section 7(h)) have been described in §§ 778.201 through 778.206. The plain wording of the statute makes it clear that extra compensation provided by premium rates other than those described in the statute cannot be treated as overtime premiums. When such other premiums are paid, they must be included in the employee's regular rate before statutory overtime compensation is computed; no part of such premiums may be credited toward statutory overtime pay.
(b) Nonovertime premiums. The Act requires the inclusion in the regular rate of such extra premiums as nightshift differentials (whether they take the form of a percent of the base rate or an addition of so many cents per hour) and premiums paid for hazardous, arduous or dirty work. It also requires inclusion of any extra compensation which is paid as an incentive for the rapid performance of work, and since any extra compensation in order to qualify as an overtime premium must be provided by a premium rate per hour, except in the special case of pieceworkers as discussed in § 778.418, lump sum premiums which are paid without regard to the number of hours worked are not overtime premiums and must be included in the regular rate. For example, where an employer pays 8 hours' pay for a particular job whether it is performed in 8 hours or in less time, the extra premium of 2 hours' pay received by an employee who completes the job in 6 hours must be included in his regular rate. Similarly, where an employer pays for 8 hours at premium rates for a job performed during the overtime hours whether it is completed in 8 hours or less, no part of the premium paid qualifies as overtime premium under sections 7(e) (5), (6), or (7). (For a further discussion of this and related problems, see §§ 778.308 to 778.314.)
[33 FR 986, Jan. 26, 1968, as amended at 84 FR 68772, Dec. 16, 2019]
Notes of Decisions
Huntington Mem'l Hosp. v. Superior Court, 2005 Cal. Daily Op. Serv. 6813 (Cal. Ct. App. 2005).
· cites it 2× “3d 279, 295 ; 29 C.F.R. § 778.207 (b) (2004).) The parties agree that a shift differential must be included in the regular rate, and rightly so.”
Garcia v. Tyson Foods, Inc., 890 F. Supp. 2d 1273 (D. Kan. 2012).
· cites it 3× “2003); 29 C.F.R. § 778.207 . The Alvarez court briefly addressed the issue of sunshine payment offsets and concluded: IBP has sought to treat Sunshine payments as an offset.”
Dacar v. Saybolt, L.P., 914 F.3d 917 (5th Cir. 2018).
“See 29 C.F.R. § 778.207 (b). The district should then compute the overtime rate by multiplying the regular rate times 1.”
Scott v. City of New York, 592 F. Supp. 2d 386 (S.D.N.Y. 2008).
“3d at 288-89 ; 29 C.F.R. § 778.207 ("The Act requires the inclusion in the regular rate of such extra premiums as nightshift differentials.”
Hoops v. Keyspan Energy, 794 F. Supp. 2d 371 (E.D.N.Y 2011).
“When calculating an employee’s “regular rate” of pay for the purposes of section 207, an employer is required to include “extra compensation, such as nightshift differentials” that were included in the employees straight-time wage rate.”
Dooley v. Liberty Mut. Ins., 369 F. Supp. 2d 81 (D. Mass. 2005).
“310 ; see also 29 C.F.R. § 778.207 (b) (“[Sjinee any extra compensation in order to qualify as an overtime premium must be provided by a premium rate per hour .”
Albanese v. Bergen Cnty., 991 F. Supp. 410 (D.N.J. 1998).
“” 29 C.F.R. § 778.207 . When an employer pays an employee a premium rate not included in § 207(e)(5), (6) or (7), the payments “must be included in the employee’s regular rate before statutory overtime compensation is computed.”
Alexander v. United States, 28 Fed. Cl. 475 (Fed. Cl. 1993).
· cites it 2× “Plaintiffs also claim that 29 C.F.R. § 778.207 (b) is directly applicable to the Sunday or holiday issue.”
Fed. Air Marshals(Fam) Fam 1 v. United States, 84 Fed. Cl. 585 (Fed. Cl. 2008).
“” 29 C.F.R. § 778.207 (a). Under the clear and unambiguous language of the FLSA and its regulations, FAM Availability Pay does not constitute overtime compensation.”
Bell v. Iowa Turkey Growers Coop., 407 F. Supp. 2d 1051 (S.D. Iowa 2006).
“Moreover, WLF' admits that it did not include the shift differential in its determination of the regular rate prior to September 21, 2003, resulting in underpayments to employees who worked overtime and sixth days. But WLF argues that it is entitled to receive credits under the…”
— 29 C.F.R. § 778.207(b) — 4 cases
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