An agreement not to compensate employees for certain nonovertime hours stands on no better footing since it would have the same effect of diminishing the employee's total overtime compensation. An agreement, for example, to pay an employee whose maximum hours standard for the particular workweek is 40 hours, $5 an hour for the first 35 hours, nothing for the hours between 35 and 40 and $7.50 an hour for the hours in excess of 40 would not meet the overtime requirements of the Act. Under the principles set forth in § 778.315, the employee would have to be paid $25 for the 5 hours worked between 35 and 40 before any sums ostensibly paid for overtime could be credited toward overtime compensation due under the Act. Unless the employee is first paid $5 for each nonovertime hour worked, the $7.50 per hour payment purportedly for overtime hours is not in fact an overtime payment.
[46 FR 7315, Jan. 23, 1981]
Notes of Decisions
Sara Conner v. Cleveland Cnty., NC, 22 F.4th 412 (4th Cir. 2022).
· cites it 2× “It is referenced, directly or indirectly, in four other Department interpretations, see 29 C.F.R. §§ 778.317 , 778.322, 778.403, and 794.”
Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106 (2d Cir. 2013).
“” 29 C.F.R. § 778.317 . This guidance seems to rely on nothing more than other (unreasoned) guidance, and directly conflicts with Klinghojfer, which ruled that such an agreement would not violate the limited protections of the FLSA.”
Monahan v. Cnty. of Chesterfield, 95 F.3d 1263 (4th Cir. 1996).
· cites it 4× “The court stated: “In these two regulations, the Administrator explains that an employer has not paid overtime in accordance with FLSA unless the employer has paid the employee at her regular rate for all straight time worked in that period.”
Carman v. Meritage Homes Corp., 37 F. Supp. 3d 860 (S.D. Tex. 2014).
· cites it 2× “” 2011 WL 10069108 , at *12 (quoting 29 C.F.R. § 778.317 ) (emphasis in original).”
Koelker v. Mayor & City Council of Cumberland, 599 F. Supp. 2d 624 (D. Maryland 2009).
“315, the employee would have to be paid $25 for the 5 hours worked between 35 and 40 before any sums ostensibly paid for overtime could be credited toward overtime compensation due under the Act.”
Braddock v. Madison Cnty., Ind., 34 F. Supp. 2d 1098 (S.D. Ind. 1998).
“The Fourth Circuit rejected the officers’ reliance on 29 C.F.R. § 778.317 , entitled “Agreements not to pay for certain nonover-time hours.”
Schmitt v. State of Kan., 844 F. Supp. 1449 (D. Kan. 1994).
“In pertinent part, the second regulation, 29 C.F.R. § 778.317 , provides as follows: An agreement .”
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