C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER B—STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS › PART 778—OVERTIME COMPENSATION › Subpart C—Payments That May Be Excluded From the “Regular Rate”

29 C.F.R. § 778.219

Pay for forgoing holidays and unused leave

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(a) Sums payable whether employee works or not. As explained in § 778.218, certain payments made to an employee for periods during which he performs no work because of a holiday, vacation, or illness are not required to be included in the regular rate because they are not regarded as compensation for working. When an employee who is entitled to such paid leave forgoes the use of leave and instead receives a payment that is the approximate equivalent to the employees' normal earnings for a similar period of working time, and is in addition to the employee's normal compensation for hours worked, the sum allocable to the forgone leave may be excluded from the regular rate. Such payments may be excluded whether paid out during the pay period in which the holiday or prescheduled leave is forgone or as a lump sum at a later point in time. Since it is not compensation for work, pay for unused leave may not be credited toward overtime compensation due under the Act. Four examples in which the maximum hours standard is 40 hours may serve to illustrate this principle:

(1) An employee whose rate of pay is $12 an hour and who usually works a 6-day, 48-hour week is entitled, under his employment contract, to a week's paid vacation in the amount of his usual straight-time earnings—$576. He forgoes his vacation and works 50 hours in the week in question. He is owed $600 as his total straight-time earnings for the week, and $576 in addition as his vacation pay. Under the statute he is owed an additional $60 as overtime premium (additional half-time) for the 10 hours in excess of 40. His regular rate of $12 per hour has not been increased by virtue of the payment of $576 vacation pay, but no part of the $576 may be offset against the statutory overtime compensation which is due. (Nothing in this example is intended to imply that the employee has a statutory right to $576 or any other sum as vacation pay. This is a matter of private contract between the parties who may agree that vacation pay will be measured by straight-time earnings for any agreed number of hours or days, or by total normal or expected take-home pay for the period, or that no vacation pay at all will be paid. The example merely illustrates the proper method of computing overtime for an employee whose employment contract provides $576 vacation pay.)

(2) An employee who is entitled under his employment contract to 8 hours' pay at his rate of $12 an hour for the Christmas holiday, forgoes his holiday and works 9 hours on that day. During the entire week, he works a total of 50 hours. He is paid under his contract $600 as straight-time compensation for 50 hours plus $96 as idle holiday pay. He is owed, under the statute, an additional $60 as overtime premium (additional half-time) for the 10 hours in excess of 40. His regular rate of $12 per hour has not been increased by virtue of the holiday pay but no part of the $96 holiday pay may be credited toward statutory overtime compensation due.

(3) An employee whose rate of pay is $12 an hour and who usually works a 40-hour week is entitled to two weeks of paid time off per year per his or her employer's policies. The employee takes one week of paid time off during the year and is paid $480 pursuant to employer policy for the one week of unused paid time off at the end of the year. The leave payout may be excluded from the employee's regular rate of pay, but no part of the payout may be credited toward statutory overtime compensation due.

(4) An employee is scheduled to work a set schedule of two 24-hour shifts on duty, followed by four 24-hour shifts off duty. This cycle repeats every six days. The employer recognizes ten holidays per year and provides employees with holiday pay for these days at amounts approximately equivalent to their normal earnings for a similar period of working time. Due to the cycle of the schedule, employees may be on duty during some recognized holidays and off duty during others, and due to the nature of their work, employees may be required to forgo a holiday if an emergency arises. In recognition of this fact, the employer provides the employees holiday pay regardless of whether the employee works on the holiday. If the employee works on the holiday, the employee will receive his or her regular salary in addition to the holiday pay. In these circumstances, the sum allocable to the holiday pay may be excluded from the regular rate.

(b) Premiums for holiday work distinguished. The example in paragraph (a)(2) of this section should be distinguished from a situation in which an employee is entitled to idle holiday pay under the employment agreement only when he is actually idle on the holiday, and who, if he forgoes his holiday also, under his contract, forgoes his idle holiday pay.

(1) The typical situation is one in which an employee is entitled by contract to 8 hours' pay at his rate of $12 an hour for certain named holidays when no work is performed. If, however, he is required to work on such days, he does not receive his idle holiday pay. Instead he receives a premium rate of $18 (time and one-half) for each hour worked on the holiday. If he worked 9 hours on the holiday and a total of 50 hours for the week, he would be owed, under his contract, $162 (9 × $18) for the holiday work and $492 for the other 41 hours worked in the week, a total of $654. Under the statute (which does not require premium pay for a holiday) he is owed $660 for a workweek of 50 hours at a rate of $12 an hour. Since the holiday premium is one and one-half times the established rate for nonholiday work, it does not increase the regular rate because it qualifies as an overtime premium under section 7(e)(6), and the employer may credit it toward statutory overtime compensation due and need pay the employee only the additional sum of $6 to meet the statutory requirements. (For a discussion of holiday premiums see § 778.203.)

(2) If all other conditions remained the same but the contract called for the payment of $24 (double time) for each hour worked on the holiday, the employee would receive, under his contract $216 (9 × $24) for the holiday work in addition to $492 for the other 41 hours worked, a total of $708. Since this holiday premium is also an overtime premium under section 7(e)(6), it is excludable from the regular rate and the employer may credit it toward statutory overtime compensation due. Because the total thus paid exceeds the statutory requirements, no additional compensation is due under the Act. In distinguishing this situation from that in the example in paragraph (a)(2) of this section, it should be noted that the contract provisions in the two situations are different and result in the payment of different amounts. In the example in paragraph (a)(2) of this section, the employee received a total of $204 attributable to the holiday: 8 hours' idle holiday pay at $12 an hour (8 × $12), due him whether he worked or not, and $108 pay at the nonholiday rate for 9 hours' work on the holiday. In the situation discussed in this paragraph (b)(2), the employee received $216 pay for working on the holiday—double time for 9 hours of work. All of the pay in this situation is paid for and directly related to the number of hours worked on the holiday.

[84 FR 68773, Dec. 16, 2019]
Notes of Decisions
Cited in 14 cases, 1987–2020 · leading case: Chavez v. City of Albuquerque, 630 F.3d 1300 (10th Cir. 2011).
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Chavez v. City of Albuquerque, 630 F.3d 1300 (10th Cir. 2011). · cites it 2× “29 C.F.R. § 778.219 (a). According to DOL, an employee who is entitled to be paid for a week’s vacation does not increase his regular rate by working instead of taking vacation, even though he or she is paid for the week of work and for an additional week of vacation time.”
Scott v. City of New York, 592 F. Supp. 2d 475 (S.D.N.Y. 2008). · cites it 3× “29 C.F.R. § 778.219 (a). 38 . See id. § 778.”
Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir. 1987). · cites it 2× “29 C.F.R. § 778.219 (a)(1) (1978); see also 29 C.”
Lemieux v. City of Holyoke, 740 F. Supp. 2d 246 (D. Mass. 2010). · cites it 3× “29 C.F.R. § 778.219 (a). Accordingly, holiday and vacation buy-back payments are excluded under section 207(e)(2) and need not be included in the regular rate under the FLSA.”
Anderson v. Davis Polk & Wardwell LLP, 850 F. Supp. 2d 392 (S.D.N.Y. 2012). “§ 207 (e)(2) (in the context of calculating the regular rate, excluding “payments made for occasional periods when no work is performed due to vacation”); 29 C.F.R. § 778.219 (in the context of calculating the regular rate, stating because vacation pay “is not compensation for…”
Balestrieri v. Menlo Park Fire Prot. Dist., 800 F.3d 1094 (9th Cir. 2015). “29 C.F.R. § 778.219 . 41 . Id. § 778.211.”
Dietrick v. Securitas Sec. Servs. USA, Inc., 50 F. Supp. 3d 1265 (N.D. Cal. 2014). · cites it 2× “” 29 C.F.R. § 778.219 (a). The problem with this argument is that the regulations that govern buy-backs apply only where the employee is “entitled” to a “paid idle holiday or paid vacation.”
Armitage v. United States, 28 Fed. Cl. 746 (Fed. Cir. 1993). · cites it 2× “(quoting 29 C.F.R. § 778.219 (a)(1) (1978)), wholly independent of the FLSA, and because we interpreted Congress to have indicated that the term “leave with pay” requires that pay “not be diminished in any way” while on leave, id.”
Padilla v. City of Richmond (N.D. Cal. 2020). · cites it 6× “(citing 29 C.F.R. § 778.219 (a)). The court denied defendant’s motion for 21 summary judgment, reasoning that “it is at least as plausible that safety officers and 22 dispatchers are compensated biannually for the inconvenience of working a schedule in 23 which they are not…”
Englert v. City of Merced (E.D. Cal. 2020). · cites it 3× “Under 29 CFR 778.219, where an employee forgoes his or her 8 holiday and works, and is paid for his or her normal work plus an additional amount for the holiday, the additional amount paid for working the holiday is not 9 included in the regular rate.”
McKinnon v. City of Merced (E.D. Cal. 2020). · cites it 3× “Under 29 CFR 778.219, where an employee forgoes his or her 17 holiday and works, and is paid for his or her normal work plus an additional amount for the holiday, the additional amount paid for working the holiday is not 18 included in the regular rate.”
Chavez v. City of Albuquerque (10th Cir. 2011). · cites it 2× “29 C.F.R. § 778.219 (a). According to DOL, an employee who is entitled to be paid for a week’s vacation does not increase his regular rate by working instead of taking vacation, even though he or she is paid for the week of work and for an additional week of vacation time.”
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— 29 C.F.R. § 778.219(a) — 1 case
Padilla v. City of Richmond (N.D. Cal. 2020). “(citing 29 C.F.R. § 778.219 (a)). The court denied defendant’s motion for 21 summary judgment, reasoning that “it is at least as plausible that safety officers and 22 dispatchers are compensated biannually for the inconvenience of working a schedule in 23 which they are not…”
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