(a) The reductions in pay described in Sec. 778.304(a)(4) are not,
properly speaking, ``deductions'' at all. If an employee is compensated
at a fixed salary for a fixed workweek and if this salary is reduced by
the amount of the average hourly earnings for each hour lost by the
employee in a short workweek, the employee is, for all practical
purposes, employed at an hourly rate of pay. This hourly rate is the
quotient of the fixed salary divided by the fixed number of hours it is
intended to compensate. If an employee is hired at a fixed salary of
$200 for a 40-hour week, his hourly rate is $5. When he works only 36
hours he is therefore entitled to $180. The employer makes a
``deduction'' of $20 from his salary to achieve this result. The regular
hourly rate is not altered.
(b) When an employee is paid a fixed salary for a workweek of
variable hours (or a guarantee of pay under the provisions of section
7(f) of the Act, as discussed in Secs. 778.402 through 778.414), the
understanding is that the salary or guarantee is due the employee in
short workweeks as well as in longer ones and ``deductions'' of this
type are not made. Therefore, in cases where the understanding of the
parties is not clearly shown as to whether a fixed salary is intended to
cover a fixed or a variable workweek the practice of making
``deductions'' from the salary for hours not worked in short weeks will
be considered strong, if not conclusive, evidence that the salary covers
a fixed workweek.
[33 FR 986, Jan. 26, 1968, as amended at 46 FR 7314, Jan. 23, 1981]
