In some cases an employee is hired on a salary basis with the
understanding that his weekly salary is intended to cover the fixed
schedule of hours (and no more) and that this fixed schedule provides
for alternating workweeks of different fixed lengths. For example, many
offices operate with half staff on Saturdays and, in consequence,
employees are hired at a fixed salary covering a fixed working schedule
of 7 hours a day Monday through Friday and 5 hours on alternate
Saturdays. The parties agree that extra compensation is to be paid for
all hours worked in excess of the schedule in either week at the base
rate for hours between 35 and 40 in the short week and at time and one-
half such rate for hours in excess of 40 in all weeks. Such an
arrangement results in the employee's working at two different rates of
pay--one thirty-fifth of the salary in short workweeks and one-fourtieth
of the salary in the longer weeks. If the provisions of such a contract
are followed, if the nonovertime hours are compensated in full at the
applicable regular rate in each week and overtime compensation is
properly computed for hours in excess of 40 at time and one-half the
rate applicable in the particular workweek, the overtime requirements of
the Fair Labor Standards Act will be met. While this situation bears
some resemblance to the one discussed in Sec. 778.327 there is this
significant difference; the arrangement is permanent, the length of the
respective workweeks and the rates for such weeks are fixed on a
permanent-schedule basis far in advance and are
therefore not subject to the control of the employer and do not vary
with the fluctuations in business. In an arrangement of this kind, if
the employer required the employee to work on Saturday in a week in
which he was scheduled for work only on the Monday through Friday
schedule, he would be paid at his regular rate for all the Saturday
hours in addition to his salary.
