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 Sec. 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.
