C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER B—STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS › PART 779—THE FAIR LABOR STANDARDS ACT AS APPLIED TO RETAILERS OF GOODS OR SERVICES › Subpart E—Provisions Relating to Certain Employees of Retail or Service Establishments

29 C.F.R. § 779.412

Compensation requirements for overtime pay exemption under section 7(i)

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An employee of a “retail or service establishment” who is paid on a commission basis or whose pay includes compensation representing commissions need not be paid the premium compensation prescribed by section 7(a) for overtime hours worked in a workweek, provided the following conditions are met:

(a) The “regular rate” of pay of such employee must be more than one and one-half times the minimum hourly rate applicable to him under section 6, and

(b) More than half his compensation for a “representative period” (not less than one month) must represent commissions on goods or services.

Notes of Decisions
Cited in 7 cases (3 in the last 5 years), 2005–2025 · leading case: Schwind v. EW & Assocs., Inc., 371 F. Supp. 2d 560 (S.D.N.Y. 2005).
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Schwind v. EW & Assocs., Inc., 371 F. Supp. 2d 560 (S.D.N.Y. 2005). “§ 207 (i); 29 C.F.R. § 779.412 . Consequently, defendants contend that plaintiff is not entitled to overtime during the period he was an independent contractor because he was paid on a commission basis and earned in excess of *564 one and one-half times the minimum hourly rate.”
Lee v. Ethan Allen Retail, Inc., 651 F. Supp. 2d 1361 (N.D. Ga. 2009). “The retail or service establishment exemption applies where: (1) the employee was employed by a retail or service establishment; (2) the employee’s regular rate of pay was more than one and one-half times the minimum hourly rate; and (3) more than half of the employee’s…”
Mcaninch v. Monro Muffler Brake Inc., 799 F. Supp. 2d 807 (S.D. Ohio 2011). “§ 207 (i); 29 C.F.R. § 779.412 (2000). Wilks I , 2006 WL 2821700 , at *10, 2006 U.”
Doss v. Custom Auto Serv. Inc (E.D. Ark. 2022). “See also 29 C.F.R. § 779.412 . Defendants contend that, to calculate the regular rate of pay for a particular workweek, you take the hours worked divided into straight-time earnings for such hours to obtain the statutory regular rate.”
Morrissey v. CES Comput. Enhancement Sys., Inc. (D. Md. 2023). “§ 207 (i); 29 C.F.R. § 779.412 . Initially, the parties dispute whether Defendants have waived their ability to assert this exemption as a defense.”
Osterman v. Gen. R.V. Ctr., Inc. (E.D. Mich. 2020). “§ 207 (i); 29 C.F.R. § 779.412 . It is undisputed that General R.”
Volpe v. Vmsb, LLC (S.D. Fla. 2025). “” 29 C.F.R. § 779.412 . The “regular rate of pay” is “the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed,” and “by its very nature must reflect all payments which the parties have agreed shall be received regularly during the…”
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