In some cases an agreement provides for compensation for hours spent
in certain types of activities which would not be regarded as working
time under the Act if no compensation were provided. Preliminary and
postliminary activities and time spent in eating meals between working
hours fall in this category. The agreement of the parties to provide
compensation for such hours may or may not convert them into hours
worked, depending on whether or not it appears from all the pertinent
facts that the parties have agreed to treat such time as hours worked.
Except for certain activity governed by the Portal-to-Portal Act (see
paragraph (b) of this section), the agreement of the parties will be
respected, if reasonable.
(a) Parties have agreed to treat time as hours worked. Where the
parties have reasonably agreed to include as hours worked time devoted
to activities of the type described above, payments for such hours will
not have the mathematical effect of increasing or decreasing the regular
rate of an employee if the hours are compensated at the same rate as
other working hours. The requirements of section 7(a) of the Act will be
considered to be met where overtime compensation at one and one-half
times such rate is paid for the hours so compensated in the workweek
which are in excess of the statutory maximum.
(b) Parties have agreed not to treat time as hours worked. Under the
principles set forth in Sec. 778.319, where the payments are made for
time spent in an activity which, if compensable under contract, custom,
or practice, is required to be counted as hours worked under the Act by
virtue of Section 4 of the Portal-to-Portal Act of 1947 (see parts 785
and 790 of this chapter), no agreement by the parties to exclude such
compensable time from hours worked would be valid. On the other hand, in
the case of time spent in activity which would not be hours worked under
the Act if not compensated and would not become hours worked under the
Portal-to-Portal Act even if made compensable by contract, custom, or
practice, the parties may reasonably agree that the time will not be
counted as hours worked. Activities of this type include eating meals
between working hours. Where it appears from all the pertinent facts
that the parties have agreed to exclude such activities from hours
worked, payments for such time will be regarded as qualifying for
exclusion from the regular rate under the provisions of section 7(e)(2),
as explained in Secs. 778.216 to 778.224. The payments for such hours
cannot, of course, qualify as overtime premiums creditable toward
overtime compensation under section 7(h) of the Act.
[46 FR 7315, Jan. 23, 1981]
