An agreement not to compensate employees for certain nonovertime
hours stands on no better footing since it would have the same effect of
diminishing the employee's total overtime compensation. An agreement,
for example, to pay an employee whose maximum hours standard for the
particular workweek is 40 hours, $5 an hour for the first 35 hours,
nothing for the hours between 35 and 40 and $7.50 an hour for the hours
in excess of 40 would not meet the overtime requirements of the Act.
Under the principles set forth in Sec. 778.315, the employee would have
to be paid $25 for the 5 hours worked between 35 and 40 before any sums
ostensibly paid for overtime could be credited toward overtime
compensation due under the Act. Unless the employee is first paid $5 for
each nonovertime hour worked, the $7.50 per hour payment purportedly for
overtime hours is not in fact an overtime payment.
[46 FR 7315, Jan. 23, 1981]
