Any employment in which the employee's hours fluctuate only in the
overtime range above the maximum workweek prescribed by the statute
lacks the irregularity of hours for which the Supreme Court found the
so-called ``Belo'' contracts appropriate and so fails to meet the
requirements of section 7(f) which were designed to validate, subject to
express statutory limitations, contracts of a like kind in situations of
the type considered by the Court (see Sec. 778.404). Nothing in the
legislative history of section 7(f) suggests any intent to suspend the
normal application of the general overtime provisions of section 7(a) in
situations where the weekly hours of an employee fluctuate only when
overtime work in excess of the prescribed maximum weekly hours is
performed. Section 7(a) was specifically designed to deal with such a
situation by making such regular resort to overtime more costly to the
employer and thus providing an inducement to spread the work rather than
to impose additional overtime work on employees regularly employed for a
workweek of the maximum statutory length. The ``security of a regular
weekly income'' which the Supreme Court viewed as an important feature
of the ``Belo'' wage plan militating against a holding that the
contracts were invalid under the Act is, of course, already provided to
employees who regularly work at least the maximum number of hours
permitted without overtime pay under section 7(a). Their situation is
not comparable in this respect to employees whose duties cause their
weekly hours to fluctuate in such a way that some workweeks are short
and others long and they cannot, without some guarantee, know in advance
whether in a particular workweek they will be entitled to pay for the
regular number of hours of nonovertime work contemplated by section
7(a). It is such employees whose duties necessitate ``irregular hours''
within the meaning of section 7(f) and whose ``security of a regular
weekly income'' can be assured by a guarantee under that section which
will serve to increase their hourly earnings in short workweeks under
the statutory maximum hours. It is this benefit to the employee that the
Supreme Court viewed, in effect, as a quid pro quo which could serve to
balance a relaxation of the statutory requirement, applicable in other
cases, that any overtime work should cost the employer 50
percent more per hour. In the enactment of section 7(f), as in the
enactment of section 7(b) (1) and (2), the benefits that might inure to
employees from a balancing of long workweeks against short workweeks
under prescribed safeguards would seem to be the reason most likely to
have influenced the legislators to provide express exemptions from the
strict application of section 7(a). 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 lacking this factor does not qualify for the exemption.
(See Goldberg v. Winn-Dixie Stores (S.D. Fla.), 15 WH Cases 641; Wirtz
v. Midland Finance Co. (N.D. Ga.), 16 WH Cases 141; Trager v. J. E.
Plastics Mfg. Co. (S.D.N.Y.), 13 WH Cases 621; McComb v. Utica Knitting
Co., 164 F. 2d 670; Foremost Dairies v. Wirtz, 381 F. 2d 653 (C.A. 5).)
