(a) General. In the interest of simplicity and uniformity, the
principles discussed in Sec. 778.220 are applied also with respect to
typical minimum ``call-back'' or ``call-out'' payments made pursuant to
employment agreements. Typically, such minimum payments consist of a
specified number of hours' pay at the applicable straight time or
overtime rates which an employee receives on infrequent and sporadic
occasions when, after his scheduled hours of work have ended and without
prearrangement, he responds to a call from his employer to perform extra
work.
(b) Application illustrated. The application of these principles to
call-back payments may be illustrated as follows: An employment
agreement provides a minimum of 3 hours' pay at time and one-half for
any employee called back to work outside his scheduled hours. The
employees covered by the agreement, who are entitled to overtime pay
after 40 hours a week, normally work 8 hours each day, Monday through
Friday, inclusive, in a workweek beginning on Monday, and are paid
overtime compensation at time and one-half for all hours worked in
excess of 8 in any day or 40 in any workweek. Assume that an employee
covered by this agreement and paid at the rate of $5 an hour works 1
hour overtime or a total of 9 hours on Monday, and works 8 hours each on
Tuesday through Friday, inclusive. After he has gone home on Friday
evening he is called back to perform an emergency job. His hours worked
on the call total 2 hours and he receives 3 hours' pay at
time and one-half, or $22.50, under the call-back provision, in addition
to $200 for working his regular schedule and $7.50 for overtime worked
on Monday evening. In computing overtime compensation due this employee
under the Act, the 43 actual hours (not 44) are counted as working time
during the week. In addition to $215 pay at the $5 rate for all these
hours, he has received under the agreement a premium of $2.50 for the 1
overtime hour on Monday and of $5 for the 2 hours of overtime work on
the call, plus an extra sum of $7.50 paid by reason of the provision for
minimum call-back pay. For purposes of the Act, the extra premiums paid
for actual hours of overtime work on Monday and on the Friday call (a
total of $7.50) may be excluded as true overtime premiums in computing
his regular rate for the week and may be credited toward compensation
due under the Act, but the extra $7.50 received under the call-back
provision is not regarded as paid for hours worked; therefore, it may be
excluded from the regular rate, but it cannot be credited toward
overtime compensation due under the Act. The regular rate of the
employee, therefore, remains $5, and he has received an overtime premium
of $2.50 an hour for 3 overtime hours of work. This satisfies the
requirements of section 7 of the Act. The same would be true, of course,
if in the foregoing example, the employee was called back outside his
scheduled hours for the 2-hour emergency job on another night of the
week or on Saturday or Sunday, instead of on Friday night.
[33 FR 986, Jan. 26, 1968, as amended at 46 FR 7313, Jan. 23, 1981]
