While it is permissible for an employer and an employee to agree upon different base rates of pay for different types of work, it is settled under the Act that where a rate has been agreed upon as applicable to a particular type of work the parties cannot lawfully agree that the rate for that work shall be lower merely because the work is performed during the statutory overtime hours, or during a week in which statutory overtime is worked. Since a lower rate cannot lawfully be set for overtime hours it is obvious that the parties cannot lawfully agree that the working time will not be paid for at all. An agreement that only the first 8 hours of work on any days or only the hours worked between certain fixed hours of the day or only the first 40 hours of any week will be counted as working time will clearly fail of its evasive purpose. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be compensated unless authorized in advance, will not impair the employee's right to compensation for work which he is actually suffered or permitted to perform.
Notes of Decisions
Matteo Brunozzi v. Cable Commc'ns, Inc., 851 F.3d 990 (9th Cir. 2017).
“” 29 C.F.R. § 778.316 . Similarly, when discussing schemes that establish artificially low regular rates in violation of the FLSA, the DOL cautions “that the hourly rate paid for the identical work during the hours in excess of the applicable maximum hours standard cannot be…”
Garner v. Chevron Phillips Chem. Co., 834 F. Supp. 2d 528 (S.D. Tex. 2011).
“” 29 C.F.R. § 778.316 . “In all such cases it is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed.”
McCune v. Oregon Senior Servs. Div., 643 F. Supp. 1444 (D. Or. 1986).
“29 CFR 778.316. These regulations appear to apply generally to all covered workers, including those providing domestic services.”
Parth v. Pomona Valley Hosp. Med. Ctr., 584 F.3d 794 (9th Cir. 2009).
· cites it 3× “Parth derives her sole support for this argument from 29 C.F.R. § 778.316 , which prohibits employers from setting one hourly rate for the first 40 hours of work and a lower hourly rate for statutory overtime hours.”
DUPLESSE v. Cnty. of Los Angeles, 714 F. Supp. 2d 1045 (C.D. Cal. 2010).
“But this does not mean that the County is setting one hourly rate for non-overtime hours and another for overtime hours, which would violate 29 C.F.R. § 778.316 . Although Plaintiffs believe the MOU should be interpreted to require the County to pay the bonuses as an…”
Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794 (9th Cir. 2010).
· cites it 4× “These regulations outline that an employer may not set an artificially low hourly rate upon which to calculate overtime; an employer may not decrease the hourly rate in response to the number of hours worked by an employee during the week; the employer may not set the hourly…”
Carter v. City of Philadelphia (E.D. Pa. 2022).
· cites it 2× “The FLSA is silent as to compensation plans that purport to set different rates for the same work, but the interpretive guidance from the Department of Labor’s Wage and Hours Division (“WHD”) is clear that where parties agree on a particular rate for specified work, they cannot…”
Wofford v. Seba Abode, Inc. (W.D. Pa. 2024).
· cites it 2× “316 , titled “Agreements or practices in conflict with statutory requirements are ineffective,” provides: While it is permissible for an employer and an employee to agree upon different base rates of pay for different types of work, it is settled under the Act that where a rate…”
Herman v. City of St. Petersburg, Fl, Police Dept., 131 F. Supp. 2d 1329 (M.D. Fla. 2001).
· cites it 3× “See 29 C.F.R. § 778.316 . In response, Defendant first argues that shift differentials are not part of the “regular rate,” but instead amount to bonuses for when the overtime is performed.”
Parth v. Pomona Valley (9th Cir. 2009).
· cites it 3× “[11] Parth derives her sole support for this argument from 29 C.F.R. § 778.316 , which prohibits employers from setting one hourly rate for the first 40 hours of work and a lower hourly rate for statutory overtime hours.”
Barba v. New Century Chinese Buffet, Inc. (W.D. Pa. 2023).
“While the Court need not rule broadly whether, ever, one or more of these defenses could be available under the involved statutes (although it harbors substantial doubts that such could ever be the case), it can say with confidence here that the duty to pay according to federal…”
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