(a) Failure to pay for nonproductive time worked. Some agreements provide for payment only for the hours spent in productive work; the work hours spent in waiting time, time spent in travel on the employer's behalf or similar nonproductive time are not made compensable and in some cases are neither counted nor compensated. Payment pursuant to such an agreement will not comply with the Act; such nonproductive working hours must be counted and paid for.
(b) Compensation payable for nonproductive hours worked. The parties may agree to compensate nonproductive hours worked at a rate (at least the minimum) which is lower than the rate applicable to productive work. In such a case, the regular rate is the weighted average of the two rates, as discussed in § 778.115 and the employee whose maximum hours standard is 40 hours is owed compensation at his regular rate for all of the first 40 hours and at a rate not less than one and one-half times this rate for all hours in excess of 40. (See § 778.415 for the alternative method of computing overtime pay on the applicable rate.) In the absence of any agreement setting a different rate for nonproductive hours, the employee would be owed compensation at the regular hourly rate set for productive work for all hours up to 40 and at a rate at least one and one-half times that rate for hours in excess of 40.
(c) Compensation attributable to both productive and nonproductive hours. The situation described in paragraph (a) of this section is to be distinguished from one in which such nonproductive hours are properly counted as working time but no special hourly rate is assigned to such hours because it is understood by the parties that the other compensation received by the employee is intended to cover pay for such hours. For example, while it is not proper for an employer to agree with his pieceworkers that the hours spent in down-time (waiting for work) will not be paid for or will be neither paid for nor counted, it is permissible for the parties to agree that the pay the employees will earn at piece rates is intended to compensate them for all hours worked, the productive as well as the nonproductive hours. If this is the agreement of the parties, the regular rate of the pieceworker will be the rate determined by dividing the total piecework earnings by the total hours worked (both productive and nonproductive) in the workweek. Extra compensation (one-half the rate as so determined) would, of course, be due for each hour worked in excess of the applicable maximum hours standard.
Notes of Decisions
Cited in
14
cases (
3 in the last 5 years), 1987–2026 · leading case:
Alston v. DIRECTV, Inc., 254 F. Supp. 3d 765 (D.S.C. 2017).
Alston v. DIRECTV, Inc., 254 F. Supp. 3d 765 (D.S.C. 2017).
· cites it 10× “14 The Department of Labor’s guidance in 29 C.F.R. § 778.318 covers three piece-rate employment situations.”
Marlon Hall v. DIRECTV, LLC, 846 F.3d 757 (4th Cir. 2017).
“See 29 C.F.R. § 778.318 . In addition to compensable work, Plaintiffs also regularly performed additional tasks that, although essential to the installation and ' operation of DIRECTV products, went uncompensated by either DIRECTV or its providers.”
Aaron Espenscheid v. DirectSat USA, 705 F.3d 770 (7th Cir. 2013).
“The suit alleges that management compelled the technicians to do work for which they were not compensated at all, and also to work more than 40 hours a week without being paid overtime for the additional hours. For purposes of deciding the appeal we assume (of course without…”
Pest v. Bridal Works of New York, Inc., 268 F. Supp. 3d 413 (E.D.N.Y 2017).
“Plaintiff argues that under 29 C.F.R. § 778.318 (c), unless an employer and employee have agreed that the piece-rate will compensate the employee for all hours worked, there is a presumption that the piece-rate employee’s weekly salary only covers the first 40 hours of work and…”
Colindres v. Quietflex Mfg., 427 F. Supp. 2d 737 (S.D. Tex. 2006).
· cites it 2× “29 C.F.R. § 778.318 (a). The FLSA provides: The situation [in which nonproductive hours must be separately compensated] is to be distinguished from one in which such nonproductive hours are properly counted as working time but no special hourly rate is assigned to such hours…”
Olivo v. Crawford Chevrolet Inc., 799 F. Supp. 2d 1237 (D.N.M. 2011).
· cites it 3× “29 C.F.R. § 778.318 (a). FLSA allows employers to compensate employees at a lower rate than normal for waiting time, but employers must pay at least minimum wage even for unproductive time.”
Monroe v. Fts USA, LLC, 257 F.R.D. 634 (W.D. Tenn. 2009).
“23 ; 29 C.F.R. § 778.318 . FTS provides installation, maintenance, and repair services to customers of cable companies, including Comcast, Cox Communications, Charter, Time Warner, Suddenlink and Brighthouse, who subscribe to television, telephone and/or internet services.”
Caryk v. Coupe, 663 F. Supp. 1243 (D.D.C. 1987).
“There is no evidence that plaintiffs were required to wait outside the terms of the waiting time agreement or perform additional tasks for the employer’s benefit.”
Fitzgerald v. Forest River Mfg. LLC (N.D. Ind. 2022).
· cites it 2× “§ 207 (g), so long as it is understood by the parties that the employee is being compensated for all hours worked, see 29 C.F.R. § 778.318 (c). Ms. Fitzgerald and the other opt- in plaintiffs swore that they were paid on a piece-rate system, that they weren’t paid for most of…”
Osvaldo Figueroa v. Butterball, LLC (4th Cir. 2026).
· cites it 2× “” 29 C.F.R. § 778.318 (c). As the Fifth Circuit noticed, “FLSA regulations do not specify what is required for the 7 Figueroa represents only himself in this appeal.”
Lasater v. DirecTV, LLC, 322 F. Supp. 3d 988 (C.D. Cal. 2017).
“Because there is no prior agreement expressly providing otherwise, the answer, as a matter of law, is that only productive time influences the calculation of a regular rate here because Installers were not paid for non-productive time.”
— 29 C.F.R. § 778.318(b) — 1 case
Lasater v. DirecTV, LLC, 322 F. Supp. 3d 988 (C.D. Cal. 2017).
“Because there is no prior agreement expressly providing otherwise, the answer, as a matter of law, is that only productive time influences the calculation of a regular rate here because Installers were not paid for non-productive time.”
— 29 C.F.R. § 778.318(c) — 2 cases
Alston v. DIRECTV, Inc., 254 F. Supp. 3d 765 (D.S.C. 2017).
“14 The Department of Labor’s guidance in 29 C.F.R. § 778.318 covers three piece-rate employment situations.”
Fitzgerald v. Forest River Mfg. LLC (N.D. Ind. 2022).
“§ 207 (g), so long as it is understood by the parties that the employee is being compensated for all hours worked, see 29 C.F.R. § 778.318 (c). Ms. Fitzgerald and the other opt- in plaintiffs swore that they were paid on a piece-rate system, that they weren’t paid for most of…”
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