If an employee whose maximum hours standard is 40 hours was hired at a salary of $200 for a fixed workweek of 40 hours, his regular rate at the time of hiring was $5 per hour. If his workweek is later reduced to a fixed workweek of 35 hours while his salary remains the same, it is the fact that it now takes him only 35 hours to earn $200, so that he earns his salary at the average rate of $5.71 per hour. His regular rate thus becomes $5.71 per hour; it is no longer $5 an hour. Overtime pay is due under the Act only for hours worked in excess of 40, not 35, but if the understanding of the parties is that the salary of $200 now covers 35 hours of work and no more, the employee would be owed $5.71 per hour under his employment contract for each hour worked between 35 and 40. He would be owed not less than one and one-half times $5.71 ($8.57) per hour, under the statute, for each hour worked in excess of 40 in the workweek. In weeks in which no overtime is worked only the provisions of section 6 of the Act, requiring the payment of not less than the applicable minimum wage for each hour worked, apply so that the employee's right to receive $5.71 per hour is enforceable only under his contract. However, in overtime weeks the Administrator has the duty to insure the payment of at least one and one-half times the employee's regular rate of pay for hours worked in excess of 40 and this overtime compensation cannot be said to have been paid until all straight time compensation due the employee under the statute or his employment contract has been paid. Thus if the employee works 41 hours in a particular week, he is owed his salary for 35 hours—$200, 5 hours' pay at $5.71 per hour for the 5 hours between 35 and 40—$28.55, and 1 hour's pay at $8.57 for the 1 hour in excess of 40—$8.57, or a total of $237.12 for the week.
[46 FR 7316, Jan. 23, 1981]
Notes of Decisions
Cited in
10
cases (
1 in the last 5 years), 1994–2022 · leading case:
Conzo v. City of New York, 667 F. Supp. 2d 279 (S.D.N.Y. 2009).
Conzo v. City of New York, 667 F. Supp. 2d 279 (S.D.N.Y. 2009).
· cites it 4× “317 and 29 C.F.R. § 778.322 , which support the view that gap time claims are cognizable when the applicable employment contract does not provide compensation for all non-overtime hours.”
Monahan v. Cnty. of Chesterfield, 95 F.3d 1263 (4th Cir. 1996).
· cites it 5× “at 1457 (quoting DOL Letter Ruling, unnumbered, Oct. 22,1987 (hereinafter “1987 DOL Letter Ruling”)) (emphasis added).”
Schmitt v. State of Kan., 864 F. Supp. 1051 (D. Kan. 1994).
· cites it 2× “” 29 C.F.R. § 778.322 . 14. The first part of plaintiffs’ straight time claim is analogous to the examples in §§ 778.”
Carman v. Meritage Homes Corp., 37 F. Supp. 3d 860 (S.D. Tex. 2014).
“29 C.F.R § 778.322 reads in relevant part: “In weeks in which no overtime is worked only the provisions of section 6 of the Act, requiring the payment of not less than the applicable minimum wage for each hour worked, apply so that the employee’s right to receive $5.”
Schmitt v. State of Kan., 844 F. Supp. 1449 (D. Kan. 1994).
“In addition to the authority cited hy the State, 29 C.F.R. § 778.322 also seems in accord.”
Wheeler v. Hampton Twp., 399 F.3d 238 (3rd Cir. 2005).
“29 C.F.R. § 778.322 . While in the present case the work week was "reduced” ex ante, rather than ex post, the lesson remains the same: the fewer the hours counted in the workweek, the higher the regular rate, and vice versa.”
Balducci v. Chesterfield Cnty. (4th Cir. 1999).
· cites it 6× “From this premise, plaintiffs allege that they are entitled to overtime gap time pay under the provisions of 29 C.F.R. § 778.322 (1998). We disagree. B.”
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