The ``regular rate'' of pay under the Act cannot be left to a
declaration by the parties as to what is to be treated as the regular
rate for an employee; it must be drawn from what happens under the
employment contract (Bay Ridge Operating Co. v. Aaron, 334 U.S. 446).
The Supreme Court has described it as the hourly rate actually paid the
employee for the normal, nonovertime workweek for which he is employed--
an ``actual fact'' (Walling v.
Youngerman-Reynolds Hardwood Co., 325 U.S. 419). Section 7(e) of the Act
requires inclusion in the ``regular rate'' of ``all remuneration for
employment paid to, or on behalf of, the employee'' except payments
specifically excluded by paragraphs (1) through (7) of that subsection.
(These seven types of payments, which are set forth in Sec. 778.200 and
discussed in Secs. 778.201 through 778.224, are hereafter referred to as
``statutory exclusions.'') As stated by the Supreme Court in the
Youngerman-Reynolds case cited above: ``Once the parties have decided
upon the amount of wages and the mode of payment the determination of
the regular rate becomes a matter of mathematical computation, the
result of which is unaffected by any designation of a contrary `regular
rate' in the wage contracts.''
