The type of employment agreement permitted under section 7(f) can be made only with (or by his representatives on behalf of) an employee whose “duties * * * necessitate irregular hours of work.” It is clear that no contract made with an employee who works a regularly scheduled workweek or whose schedule involves alternating fixed workweeks will qualify under this subsection. Even if an employee does in fact work a variable workweek, the question must still be asked whether his duties necessitate irregular hours of work. The subsection is not designed to apply in a situation where the hours of work vary from week to week at the discretion of the employer or the employee, nor to a situation where the employee works an irregular number of hours according to a predetermined schedule. The nature of the employee's duties must be such that neither he nor his employer can either control or anticipate with any degree of certainty the number of hours he must work from week to week. Furthermore, for the reasons set forth in § 778.406, his duties must necessitate significant variations in weekly hours of work both below and above the statutory weekly limit on nonovertime hours. Some examples of the types of employees whose duties may necessitate irregular hours of work would be outside buyers, on-call servicemen, insurance adjusters, newspaper reporters and photographers, propmen, script girls and others engaged in similar work in the motion picture industry, firefighters, troubleshooters and the like. There are some employees in these groups whose hours of work are conditioned by factors beyond the control of their employer or themselves. However, the mere fact that an employee is engaged in one of the jobs just listed, for example, does not mean that his duties necessitate irregular hours. It is always a question of fact whether the particular employee's duties do or do not necessitate irregular hours. Many employees not listed here may qualify. Although office employees would not ordinarily qualify, some office employees whose duties compel them to work variable hours could also be in this category. For example, the confidential secretary of a top executive whose hours of work are irregular and unpredictable might also be compelled by the nature of her duties to work variable and unpredictable hours. This would not ordinarily be true of a stenographer or file clerk, nor would an employee who only rarely or in emergencies is called upon to work outside a regular schedule qualify for this exemption.
Notes of Decisions
Cited in
12
cases (
3 in the last 5 years), 1992–2024 · leading case:
Bell v. Farmers Ins. Exch., 9 Cal. Rptr. 3d 544 (Cal. Ct. App. 2004).
Bell v. Farmers Ins. Exch., 9 Cal. Rptr. 3d 544 (Cal. Ct. App. 2004).
“Moreover, 29 C.F.R. part 778.405 lists insurance adjusters as an example of those nonexempt employees with irregular hours who may enter into contracts guaranteeing constant pay for varying workweeks under section 7(f) of the FLSA.”
Ralph Condo v. Sysco Corp., 1 F.3d 599 (7th Cir. 1993).
“The parties (as well as the district court) agree that § 7(f) is irrelevant to this case because Condo’s duties did not necessitate “irregular hours of work” within the meaning of the provision. The regulations make it clear that an employee’s hours of work cannot be considered…”
Mascol v. E & L Transp., Inc., 387 F. Supp. 2d 87 (E.D.N.Y 2005).
· cites it 2× “As stated in 29 C.F.R. § 778.405 : The subsection is not designed to apply in a situation where the hours of work vary from week to week at the discretion of the employer or the employee, nor to a situation where the employee works an irregular number of hours according to a…”
Keith Jones v. Producers Serv. Corp., 95 F.4th 445 (6th Cir. 2024).
· cites it 2× “29 C.F.R. § 778.405 . For a third source of guidance, we note that the Department’s view aligns with both of the principal purposes underlying the Belo plan exception — providing employees in naturally volatile industries with “the security of a regular weekly income,” and…”
Myron Boggess & William Gill v. City of Charleston, 765 S.E.2d 255 (W. Va. 2014).
“” 29 C.F.R. § 778.405 . Section 207(f) was similarly not designed to apply to “a situation where the employee works an irregular number of hours according to a predetermined schedule.”
Harris v. Superior Court, 64 Cal. Rptr. 3d 547 (Cal. Ct. App. 2007).
· cites it 9× “( 29 C.F.R. § 778.405 .) The implication is that insurance adjusters are not exempt employeesotherwise, the provision concerning varying-workweek contracts would have nothing to do with them.”
Masters v. City of Huntington, 800 F. Supp. 355 (S.D.W. Va 1992).
“29 C.F.R. § 778.405 . The Secretary’s interpretation of the phrase “irregular hours” has, it is noted, been sanctioned by the courts when called upon construe section 7(f).”
Keith Jones v. Producers Serv. Corp. (S.D. Ohio 2019).
· cites it 2× “” 29 C.F.R. § 778.405 . Further, “[t]he nature of the employee’s duties must be such that neither he nor his employer can either control or anticipate with any degree of certainty the number of hours he must work from week to week.”
Szabo v. Muncy Indus., LLC (M.D. Penn. 2023).
· cites it 2× “70 29 C.F.R. § 778.405 (“Consequently, where the fluctuations in an employee’s hours of work resulting from his duties involve only overtime hours worked in excess of the statutory maximum hours, the hours are not “irregular” within the purport of section 7(f) and a payment plan…”
Szabo v. Muncy Indus., LLC (M.D. Penn. 2024).
“47 at 12 (citing 29 C.F.R. § 778.405 ). 71 Doc. 74 at 7. example, several courts have found that such evidence should be excluded for similar reasons.”
Hart v. Lindgren-pitman, Inc., 576 F. Supp. 2d 1349 (S.D. Fla. 2007).
“See 29 C.F.R. § 778.405 (2007) (“[N]or would an employee who only rarely or in emergencies is called upon to work outside a regular schedule qualify for this exemption.”
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