In some cases an agreement or established practice provides for compensation for hours spent in certain types of activities which would not be regarded as working time under the Act if no compensation were provided. Preliminary and postliminary activities and time spent in eating meals between working hours fall in this category. Compensation for such hours does not convert them into hours worked unless it appears from all the pertinent facts that the parties have treated such time as hours worked. Except for certain activity governed by the Portal-to-Portal Act (see paragraph (b) of this section), the agreement or established practice of the parties will be respected, if reasonable.
(a) Time treated as hours worked. Where the parties have reasonably agreed to include as hours worked time devoted to activities of the type described in the introductory text of this section, payments for such hours will not have the mathematical effect of increasing or decreasing the regular rate of an employee if the hours are compensated at the same rate as other working hours. The requirements of section 7(a) of the Act will be considered to be met where overtime compensation at one and one-half times such rate is paid for the hours so compensated in the workweek which are in excess of the statutory maximum.
(b) Time not treated as hours worked. Under the principles set forth in § 778.319, where the payments are made for time spent in an activity which, if compensable under contract, custom, or practice, is required to be counted as hours worked under the Act by virtue of section 4 of the Portal-to-Portal Act of 1947 (see parts 785 and 790 of this chapter), no agreement by the parties to exclude such compensable time from hours worked would be valid. On the other hand, in the case of time spent in an activity which would not be hours worked under the Act if not compensated and would not become hours worked under the Portal-to-Portal Act even if made compensable by contract, custom, or practice, such time will not be counted as hours worked unless agreement or established practice indicates that the parties have treated the time as hours worked. Such time includes bona fide meal periods, see § 785.19. Unless it appears from all the pertinent facts that the parties have treated such activities as hours worked, payments for such time will be regarded as qualifying for exclusion from the regular rate under the provisions of section 7(e)(2), as explained in §§ 778.216 through 778.224. The payments for such hours cannot, of course, qualify as overtime premiums creditable toward overtime compensation under section 7(h) of the Act.
[84 FR 68776, Dec. 16, 2019]
Notes of Decisions
Bobbi-Jo Smiley v. EI DuPont de Nemours & Co, 839 F.3d 325 (3rd Cir. 2016).
· cites it 2× “” 29 C.F.R. § 778.320 . Thus, if the time at issue is considered hours worked under the Act, the corresponding compensation is included in the regular rate of pay.”
Jones v. C & D Tech., Inc., 8 F. Supp. 3d 1054 (S.D. Ind. 2014).
· cites it 11× “] In its surreply, C & D argues that it never admitted it treated meal breaks as compensable hours worked, that Plaintiffs did not address its arguments relating to 29 C.F.R. § 778.320 , that there was no agreement to treat meal breaks as hours worked, and that “it is doubtful…”
Sec'y Labor v. Timberline S., LLC, 925 F.3d 838 (6th Cir. 2019).
“Rather, the district court focused only on whether Defendants had a custom or practice of paying for commute and lunch time , not whether there was an agreement to treat the time as hours worked under the FLSA.”
O'HARA v. Menino, 253 F. Supp. 2d 147 (D. Mass. 2003).
· cites it 3× “29 C.F.R. § 778.320 . Since payment for “.”
Harris v. City of Boston, 253 F. Supp. 2d 136 (D. Mass. 2003).
· cites it 3× “29 C.F.R. § 778.320 . Since payment for “.”
Nehmelman v. Penn Nat'l Gaming, Inc., 822 F. Supp. 2d 745 (N.D. Ill. 2011).
“See 29 C.F.R. § 778.320 (noting that parties may agree to provide compensation for hours spent in certain types of activities that would not be regarded as working time under the Act).”
Pietrzycki v. Heights Tower Serv., Inc., 197 F. Supp. 3d 1007 (N.D. Ill. 2016).
· cites it 3× “” 29 C.F.R. § 778.320 (b). In this case, Defendants have not identified any evidence that HTS reached such an agreement with even one of its employees.”
O'BRIEN v. Town of Agawam, 482 F. Supp. 2d 115 (D. Mass. 2007).
· cites it 2× “” 29 C.F.R. § 778.320 . Citing provisions in the two pertinent collective bargaining agreements (“CBAs”) requiring Plaintiffs to work “eight (8) hours of duty per day” and the absence of any provision concerning meal periods, the court concluded that the parties in this case had…”
O'BRIEN v. Town of Agawam, 440 F. Supp. 2d 3 (D. Mass. 2006).
“” 29 C.F.R. § 778.320 . An agreement to provide compensation for such hours “may or may not convert them into hours worked, depending on whether or not it appears from all the pertinent facts that the parties have agreed to treat such time as hours worked.”
— 29 C.F.R. § 778.320(b) — 2 cases
Pietrzycki v. Heights Tower Serv., Inc., 197 F. Supp. 3d 1007 (N.D. Ill. 2016).
“” 29 C.F.R. § 778.320 (b). In this case, Defendants have not identified any evidence that HTS reached such an agreement with even one of its employees.”
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