(a) General rule. When the beginning of the workweek is changed, if
the hours which fall within both ``old'' and ``new'' workweeks as
explained in Sec. 778.301 are hours in which the employee does no work,
his statutory compensation for each workweek is, of course, determinable
in precisely the same manner as it would be if no overlap existed. If,
on the other hand, some of the employee's working time falls within
hours which are included in both workweeks, the Department of Labor, as
an enforcement policy, will assume that the overtime requirements of
section 7 of the Act have been satisfied if computation is made as
follows:
(1) Assume first that the overlapping hours are to be counted as
hours worked only in the ``old'' workweek and not in the new; compute
straight time and overtime compensation due for each of the 2 workweeks
on this basis and total the two sums.
(2) Assume now that the overlapping hours are to be counted as hours
worked only in the new workweek and not in the old, and complete the
total computation accordingly.
(3) Pay the employee an amount not less than the greater of the
amounts computed by methods (1) and (2).
(b) Application of rule illustrated. Suppose that, in the example
given in Sec. 778.301, the employee, who receives $5 an hour and is
subject to overtime pay after 40 hours a week, worked 5 hours on Sunday,
March 7, 1965. Suppose also that his last ``old'' workweek commenced at
7 a.m. on Monday, March 1, and he worked 40 hours March 1 through March
5 so that for the workweek ending March 7 he would be owed straight time
and overtime compensation for 45 hours. The proposal is to commence the
``new'' workweek at 7 a.m. on March 7. If in the ``new'' workweek of
Sunday, March 7, through Saturday, March 13, the employee worked a total
of 40 hours, including the 5 hours worked on Sunday, it is obvious that
the allocation of the Sunday hours to the old workweek will result in
higher total compensation to the employee for the 13-day period. He
should, therefore, be paid $237.50 (40 x $5+5 x $7.50) for the period of
March 1 through March 7, and $175 (35 x $5) for the period of March 8
through March 13.
(c) Nonstatutory obligations unaffected. The fact that this method
of compensation is permissible under the Fair Labor Standards Act when
the beginning of the workweek is changed will not alter any obligation
the employer may have under his employment contract to pay a greater
amount of overtime compensation for the period in question.
[33 FR 986, Jan. 26, 1968, as amended at 46 FR 7314, Jan. 23, 1981]
