(a) Another device designed to evade the overtime requirements of the Act was a plan known as the “Poxon” or “split-day” plan. Under this plan the normal or regular workday is artificially divided into two portions one of which is arbitrarily labeled the “straight time” portion of the day and the other the “overtime” portion. Under such a plan, an employee who would ordinarily command an hourly rate of pay well in excess of the minimum for his work is assigned a low hourly rate (often the minimum) for the first hour (or the first 2 or 4 hours) of each day. This rate is designated as the regular rate: “time and one-half” based on such rate is paid for each additional hour worked during the workday. Thus, for example, an employee is arbitrarily assigned an hourly rate of $5 per hour under a contract which provides for the payment of so-called “overtime” for all hours in excess of 4 per day. Thus, for the normal or regular 8-hour day the employee would receive $20 for the first 4 hours and $30 for the remaining 4 hours; and a total of $50 for 8 hours. (This is exactly what he would receive at the straight time rate of $6.25 per hour.) On the sixth 8-hour day the employee likewise receives $50 and the employer claims to owe no additional overtime pay under the statute since he has already compensated the employee at “overtime” rates for 20 hours of the workweek.
(b) Such a division of the normal 8-hour workday into 4 straight time hours and 4 overtime hours is purely fictitious. The employee is not paid at the rate of $5 an hour and the alleged overtime rate of $7.50 per hour is not paid for overtime work. It is not geared either to hours “in excess of the employee's normal working hours or regular working hours” (section 7(e)(5) or for work “outside of the hours established in good faith * * * as the basic, normal, or regular workday” (section 7(e) (7)) and it cannot therefore qualify as an overtime rate. The regular rate of pay of the employee in this situation is $6.25 per hour and he is owed additional overtime compensation, based on this rate, for all hours in excess of the applicable maximum hours standard. This rule was settled by the Supreme Court in the case of Walling v. Helmerich & Payne, 323 U.S. 37, and its validity has been reemphasized by the definition of the term “regular rate” in section 7(e) of the Act as amended.
[46 FR 7318, Jan. 23, 1981; 46 FR 33516, June 30, 1981]
Notes of Decisions
Kerbes v. Raceway Assocs., LLC, 961 N.E.2d 865 (Ill. App. Ct. 2011).
“" 29 C.F.R. § 778.501 (a) (2011). Neither of these two examples is particularly relevant to plaintiff's instant claim against ISC, and neither lends any support to his assertion of a FLSA or Minimum Wage Law violation on the basis that ISC made a permanent change in the starting…”
L.R. Wethington v. City of Montgomery, 935 F.2d 222 (11th Cir. 1991).
“For convenience, the numbers in this example come from 29 C.F.R. § 778.501 . 6 . The district court relied on this first argument to find the City's plan invalid.”
Lee v. Vance Exec. Prot., Inc., 7 F. App'x 160 (4th Cir. 2001).
“29 (1944); 29 C.F.R. § 778.501 (2000). To permit such divisions would undermine the FLSA’s objectives of spreading work and compensating employees for excessive hours worked.”
Abshire v. Redland Energy Servs., LLC, 695 F.3d 792 (8th Cir. 2012).
“See 29 C.F.R. § 778.501 (a). But the Department has never interpreted its general caution that changes to the workweek may not be “designed to evade the overtime requirements,” nor has it attempted to clarify what constitutes “evasion.”
Neal Goulas v. Lagreca Servs., Inc., et, 557 F. App'x 337 (5th Cir. 2014).
“As for the statute-of-limitations issue, we agree with the district court that Gou-las failed to present evidence creating a factual dispute regarding whether there was a “willful violation” of the FLSA. Gou-las presented evidence that he was paid $10 per hour for forty hours of…”
Goulas v. Lagreca, 945 F. Supp. 2d 693 (E.D. La. 2013).
“This rate is designated as the regular rate: “time and one-half’ based on such rate is paid for each additional hour worked during the workday.”
Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794 (9th Cir. 2010).
“29 (1944); 29 C.F.R. § 778.501 . Both types of plans work in a manner so that employees do not earn overtime compensation, regardless of how many hours they worked.”
Brock v. Wilamowsky, 639 F. Supp. 1166 (S.D.N.Y. 1986).
“regulation is applicable: If the normal workday is artificially divided into a ‘straight time’ period to which one rate is assigned, followed by a so-called ‘overtime’ period for which a higher ‘rate’ is specified, the arrangement will be regarded as a device to contravene the…”
Parth v. Pomona Valley Hosp. Med. Ctr., 584 F.3d 794 (9th Cir. 2009).
“29 (1944); 29 C.F.R. § 778.501 . Both types of plans work in a manner so that employees do not earn overtime compensation, regardless of how many hours they worked.”
Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794 (9th Cir. 2010).
“29 (1944); 29 C.F.R. § 778.501 . Both types of plans work in a manner so that employees do not earn overtime compensation, regardless of how many hours they worked.”
Nitzkorski v. Columbine Emergency Med. Servs. Inc. (D. Colo. 2020).
“”); 29 C.F.R. § 778.501 (a) (decrying the “split-day” plan, in which “the normal or regular workday is artificially divided into two portions one of which is arbitrarily labeled the ‘straight time’ portion of the day and the other the ‘overtime’ portion”).”
Parth v. Pomona Valley (9th Cir. 2009).
“37, 40 (1944); 29 C.F.R. § 778.501 . Both types of plans work in a manner so that employees do not earn overtime compen- sation, regardless of how many hours they worked.”
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