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U.S. Code as of:
01/19/04
Section 207. Maximum hours
(a) Employees engaged in interstate commerce; additional
applicability to employees pursuant to subsequent amendatory
provisions
(1) Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek is engaged in
commerce or in the production of goods for commerce, or is employed
in an enterprise engaged in commerce or in the production of goods
for commerce, for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the
hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.
(2) No employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in commerce or in
the production of goods for commerce, and who in such workweek is
brought within the purview of this subsection by the amendments
made to this chapter by the Fair Labor Standards Amendments of 1966
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(A) for a workweek longer than forty-four hours during the
first year from the effective date of the Fair Labor Standards
Amendments of 1966,
(B) for a workweek longer than forty-two hours during the
second year from such date, or
(C) for a workweek longer than forty hours after the expiration
of the second year from such date,
unless such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is employed.
(b) Employment pursuant to collective bargaining agreement;
employment by independently owned and controlled local enterprise
engaged in distribution of petroleum products
No employer shall be deemed to have violated subsection (a) of
this section by employing any employee for a workweek in excess of
that specified in such subsection without paying the compensation
for overtime employment prescribed therein if such employee is so
employed -
(1) in pursuance of an agreement, made as a result of
collective bargaining by representatives of employees certified
as bona fide by the National Labor Relations Board, which
provides that no employee shall be employed more than one
thousand and forty hours during any period of twenty-six
consecutive weeks; or
(2) in pursuance of an agreement, made as a result of
collective bargaining by representatives of employees certified
as bona fide by the National Labor Relations Board, which
provides that during a specified period of fifty-two consecutive
weeks the employee shall be employed not more than two thousand
two hundred and forty hours and shall be guaranteed not less than
one thousand eight hundred and forty-hours (or not less than
forty-six weeks at the normal number of hours worked per week,
but not less than thirty hours per week) and not more than two
thousand and eighty hours of employment for which he shall
receive compensation for all hours guaranteed or worked at rates
not less than those applicable under the agreement to the work
performed and for all hours in excess of the guaranty which are
also in excess of the maximum workweek applicable to such
employee under subsection (a) of this section or two thousand and
eighty in such period at rates not less than one and one-half
times the regular rate at which he is employed; or
(3) by an independently owned and controlled local enterprise
(including an enterprise with more than one bulk storage
establishment) engaged in the wholesale or bulk distribution of
petroleum products if -
(A) the annual gross volume of sales of such enterprise is
less than $1,000,000 exclusive of excise taxes,
(B) more than 75 per centum of such enterprise's annual
dollar volume of sales is made within the State in which such
enterprise is located, and
(C) not more than 25 per centum of the annual dollar volume
of sales of such enterprise is to customers who are engaged in
the bulk distribution of such products for resale,
and such employee receives compensation for employment in excess
of forty hours in any workweek at a rate not less than one and
one-half times the minimum wage rate applicable to him under
section 206 of this title,
and if such employee receives compensation for employment in excess
of twelve hours in any workday, or for employment in excess of
fifty-six hours in any workweek, as the case may be, at a rate not
less than one and one-half times the regular rate at which he is
employed.
(c), (d) Repealed. Pub. L. 93-259, Sec. 19(e), Apr. 8, 1974, 88
Stat. 66
(e) "Regular rate" defined
As used in this section the "regular rate" at which an employee
is employed shall be deemed to include all remuneration for
employment paid to, or on behalf of, the employee, but shall not be
deemed to include -
(1) sums paid as gifts; payments in the nature of gifts made at
Christmas time or on other special occasions, as a reward for
service, the amounts of which are not measured by or dependent on
hours worked, production, or efficiency;
(2) payments made for occasional periods when no work is
performed due to vacation, holiday, illness, failure of the
employer to provide sufficient work, or other similar cause;
reasonable payments for traveling expenses, or other expenses,
incurred by an employee in the furtherance of his employer's
interests and properly reimbursable by the employer; and other
similar payments to an employee which are not made as
compensation for his hours of employment;
(3) Sums (!1) paid in recognition of services performed during
a given period if either, (a) both the fact that payment is to be
made and the amount of the payment are determined at the sole
discretion of the employer at or near the end of the period and
not pursuant to any prior contract, agreement, or promise causing
the employee to expect such payments regularly; or (b) the
payments are made pursuant to a bona fide profit-sharing plan or
trust or bona fide thrift or savings plan, meeting the
requirements of the Administrator set forth in appropriate
regulations which he shall issue, having due regard among other
relevant factors, to the extent to which the amounts paid to the
employee are determined without regard to hours of work,
production, or efficiency; or (c) the payments are talent fees
(as such talent fees are defined and delimited by regulations of
the Administrator) paid to performers, including announcers, on
radio and television programs;
(4) contributions irrevocably made by an employer to a trustee
or third person pursuant to a bona fide plan for providing
old-age, retirement, life, accident, or health insurance or
similar benefits for employees;
(5) extra compensation provided by a premium rate paid for
certain hours worked by the employee in any day of workweek
because such hours are hours worked in excess of eight in a day
or in excess of the maximum workweek applicable to such employee
under subsection (a) of this section or in excess of the
employee's normal working hours or regular working hours, as the
case may be;
(6) extra compensation provided by a premium rate paid for work
by the employee on Saturdays, Sundays, holidays, or regular days
of rest, or on the sixth or seventh day of the workweek, where
such premium rate is not less than one and one-half times the
rate established in good faith for like work performed in
nonovertime hours on other days;
(7) extra compensation provided by a premium rate paid to the
employee, in pursuance of an applicable employment contract or
collective-bargaining agreement, for work outside of the hours
established in good faith by the contract or agreement as the
basic, normal, or regular workday (not exceeding eight hours) or
workweek (not exceeding the maximum workweek applicable to such
employee under subsection (a) of this section,(!2) where such
premium rate is not less than one and one-half times the rate
established in good faith by the contract or agreement for like
work performed during such workday or workweek; or
(8) any value or income derived from employer-provided grants
or rights provided pursuant to a stock option, stock appreciation
right, or bona fide employee stock purchase program which is not
otherwise excludable under any of paragraphs (1) through (7) if -
(A) grants are made pursuant to a program, the terms and
conditions of which are communicated to participating employees
either at the beginning of the employee's participation in the
program or at the time of the grant;
(B) in the case of stock options and stock appreciation
rights, the grant or right cannot be exercisable for a period
of at least 6 months after the time of grant (except that
grants or rights may become exercisable because of an
employee's death, disability, retirement, or a change in
corporate ownership, or other circumstances permitted by
regulation), and the exercise price is at least 85 percent of
the fair market value of the stock at the time of grant;
(C) exercise of any grant or right is voluntary; and
(D) any determinations regarding the award of, and the amount
of, employer-provided grants or rights that are based on
performance are -
(i) made based upon meeting previously established
performance criteria (which may include hours of work,
efficiency, or productivity) of any business unit consisting
of at least 10 employees or of a facility, except that, any
determinations may be based on length of service or minimum
schedule of hours or days of work; or
(ii) made based upon the past performance (which may
include any criteria) of one or more employees in a given
period so long as the determination is in the sole discretion
of the employer and not pursuant to any prior contract.
(f) Employment necessitating irregular hours of work
No employer shall be deemed to have violated subsection (a) of
this section by employing any employee for a workweek in excess of
the maximum workweek applicable to such employee under subsection
(a) of this section if such employee is employed pursuant to a bona
fide individual contract, or pursuant to an agreement made as a
result of collective bargaining by representatives of employees, if
the duties of such employee necessitate irregular hours of work,
and the contract or agreement (1) specifies a regular rate of pay
of not less than the minimum hourly rate provided in subsection (a)
or (b) of section 206 of this title (whichever may be applicable)
and compensation at not less than one and one-half times such rate
for all hours worked in excess of such maximum workweek, and (2)
provides a weekly guaranty of pay for not more than sixty hours
based on the rates so specified.
(g) Employment at piece rates
No employer shall be deemed to have violated subsection (a) of
this section by employing any employee for a workweek in excess of
the maximum workweek applicable to such employee under such
subsection if, pursuant to an agreement or understanding arrived at
between the employer and the employee before performance of the
work, the amount paid to the employee for the number of hours
worked by him in such workweek in excess of the maximum workweek
applicable to such employee under such subsection -
(1) in the case of an employee employed at piece rates, is
computed at piece rates not less than one and one-half times the
bona fide piece rates applicable to the same work when performed
during nonovertime hours; or
(2) in the case of an employee performing two or more kinds of
work for which different hourly or piece rates have been
established, is computed at rates not less than one and one-half
times such bona fide rates applicable to the same work when
performed during nonovertime hours; or
(3) is computed at a rate not less than one and one-half times
the rate established by such agreement or understanding as the
basic rate to be used in computing overtime compensation
thereunder: Provided, That the rate so established shall be
authorized by regulation by the Administrator as being
substantially equivalent to the average hourly earnings of the
employee, exclusive of overtime premiums, in the particular work
over a representative period of time;
and if (i) the employee's average hourly earnings for the workweek
exclusive of payments described in paragraphs (1) through (7) of
subsection (e) of this section are not less than the minimum hourly
rate required by applicable law, and (ii) extra overtime
compensation is properly computed and paid on other forms of
additional pay required to be included in computing the regular
rate.
(h) Credit toward minimum wage or overtime compensation of amounts
excluded from regular rate
(1) Except as provided in paragraph (2), sums excluded from the
regular rate pursuant to subsection (e) of this section shall not
be creditable toward wages required under section 206 of this title
or overtime compensation required under this section.
(2) Extra compensation paid as described in paragraphs (5), (6),
and (7) of subsection (e) of this section shall be creditable
toward overtime compensation payable pursuant to this section.
(i) Employment by retail or service establishment
No employer shall be deemed to have violated subsection (a) of
this section by employing any employee of a retail or service
establishment for a workweek in excess of the applicable workweek
specified therein, if (1) the regular rate of pay of such employee
is in excess of one and one-half times the minimum hourly rate
applicable to him under section 206 of this title, and (2) more
than half his compensation for a representative period (not less
than one month) represents commissions on goods or services. In
determining the proportion of compensation representing
commissions, all earnings resulting from the application of a bona
fide commission rate shall be deemed commissions on goods or
services without regard to whether the computed commissions exceed
the draw or guarantee.
(j) Employment in hospital or establishment engaged in care of
sick, aged, or mentally ill
No employer engaged in the operation of a hospital or an
establishment which is an institution primarily engaged in the care
of the sick, the aged, or the mentally ill or defective who reside
on the premises shall be deemed to have violated subsection (a) of
this section if, pursuant to an agreement or understanding arrived
at between the employer and the employee before performance of the
work, a work period of fourteen consecutive days is accepted in
lieu of the workweek of seven consecutive days for purposes of
overtime computation and if, for his employment in excess of eight
hours in any workday and in excess of eighty hours in such
fourteen-day period, the employee receives compensation at a rate
not less than one and one-half times the regular rate at which he
is employed.
(k) Employment by public agency engaged in fire protection or law
enforcement activities
No public agency shall be deemed to have violated subsection (a)
of this section with respect to the employment of any employee in
fire protection activities or any employee in law enforcement
activities (including security personnel in correctional
institutions) if -
(1) in a work period of 28 consecutive days the employee
receives for tours of duty which in the aggregate exceed the
lesser of (A) 216 hours, or (B) the average number of hours (as
determined by the Secretary pursuant to section 6(c)(3) of the
Fair Labor Standards Amendments of 1974) in tours of duty of
employees engaged in such activities in work periods of 28
consecutive days in calendar year 1975; or
(2) in the case of such an employee to whom a work period of at
least 7 but less than 28 days applies, in his work period the
employee receives for tours of duty which in the aggregate exceed
a number of hours which bears the same ratio to the number of
consecutive days in his work period as 216 hours (or if lower,
the number of hours referred to in clause (B) of paragraph (1))
bears to 28 days,
compensation at a rate not less than one and one-half times the
regular rate at which he is employed.
(l) Employment in domestic service in one or more households
No employer shall employ any employee in domestic service in one
or more households for a workweek longer than forty hours unless
such employee receives compensation for such employment in
accordance with subsection (a) of this section.
(m) Employment in tobacco industry
For a period or periods of not more than fourteen workweeks in
the aggregate in any calendar year, any employer may employ any
employee for a workweek in excess of that specified in subsection
(a) of this section without paying the compensation for overtime
employment prescribed in such subsection, if such employee -
(1) is employed by such employer -
(A) to provide services (including stripping and grading)
necessary and incidental to the sale at auction of green leaf
tobacco of type 11, 12, 13, 14, 21, 22, 23, 24, 31, 35, 36, or
37 (as such types are defined by the Secretary of Agriculture),
or in auction sale, buying, handling, stemming, redrying,
packing, and storing of such tobacco,
(B) in auction sale, buying, handling, sorting, grading,
packing, or storing green leaf tobacco of type 32 (as such type
is defined by the Secretary of Agriculture), or
(C) in auction sale, buying, handling, stripping, sorting,
grading, sizing, packing, or stemming prior to packing, of
perishable cigar leaf tobacco of type 41, 42, 43, 44, 45, 46,
51, 52, 53, 54, 55, 61, or 62 (as such types are defined by the
Secretary of Agriculture); and
(2) receives for -
(A) such employment by such employer which is in excess of
ten hours in any workday, and
(B) such employment by such employer which is in excess of
forty-eight hours in any workweek,
compensation at a rate not less than one and one-half times the
regular rate at which he is employed.
An employer who receives an exemption under this subsection shall
not be eligible for any other exemption under this section.
(n) Employment by street, suburban, or interurban electric railway,
or local trolley or motorbus carrier
In the case of an employee of an employer engaged in the business
of operating a street, suburban or interurban electric railway, or
local trolley or motorbus carrier (regardless of whether or not
such railway or carrier is public or private or operated for profit
or not for profit), in determining the hours of employment of such
an employee to which the rate prescribed by subsection (a) of this
section applies there shall be excluded the hours such employee was
employed in charter activities by such employer if (1) the
employee's employment in such activities was pursuant to an
agreement or understanding with his employer arrived at before
engaging in such employment, and (2) if employment in such
activities is not part of such employee's regular employment.
(o) Compensatory time
(1) Employees of a public agency which is a State, a political
subdivision of a State, or an interstate governmental agency may
receive, in accordance with this subsection and in lieu of overtime
compensation, compensatory time off at a rate not less than one and
one-half hours for each hour of employment for which overtime
compensation is required by this section.
(2) A public agency may provide compensatory time under paragraph
(1) only -
(A) pursuant to -
(i) applicable provisions of a collective bargaining
agreement, memorandum of understanding, or any other agreement
between the public agency and representatives of such
employees; or
(ii) in the case of employees not covered by subclause (i),
an agreement or understanding arrived at between the employer
and employee before the performance of the work; and
(B) if the employee has not accrued compensatory time in excess
of the limit applicable to the employee prescribed by paragraph
(3).
In the case of employees described in clause (A)(ii) hired prior to
April 15, 1986, the regular practice in effect on April 15, 1986,
with respect to compensatory time off for such employees in lieu of
the receipt of overtime compensation, shall constitute an agreement
or understanding under such clause (A)(ii). Except as provided in
the previous sentence, the provision of compensatory time off to
such employees for hours worked after April 14, 1986, shall be in
accordance with this subsection.
(3)(A) If the work of an employee for which compensatory time may
be provided included work in a public safety activity, an emergency
response activity, or a seasonal activity, the employee engaged in
such work may accrue not more than 480 hours of compensatory time
for hours worked after April 15, 1986. If such work was any other
work, the employee engaged in such work may accrue not more than
240 hours of compensatory time for hours worked after April 15,
1986. Any such employee who, after April 15, 1986, has accrued 480
or 240 hours, as the case may be, of compensatory time off shall,
for additional overtime hours of work, be paid overtime
compensation.
(B) If compensation is paid to an employee for accrued
compensatory time off, such compensation shall be paid at the
regular rate earned by the employee at the time the employee
receives such payment.
(4) An employee who has accrued compensatory time off authorized
to be provided under paragraph (1) shall, upon termination of
employment, be paid for the unused compensatory time at a rate of
compensation not less than -
(A) the average regular rate received by such employee during
the last 3 years of the employee's employment, or
(B) the final regular rate received by such employee,
whichever is higher (!3)
(5) An employee of a public agency which is a State, political
subdivision of a State, or an interstate governmental agency -
(A) who has accrued compensatory time off authorized to be
provided under paragraph (1), and
(B) who has requested the use of such compensatory time,
shall be permitted by the employee's employer to use such time
within a reasonable period after making the request if the use of
the compensatory time does not unduly disrupt the operations of the
public agency.
(6) The hours an employee of a public agency performs court
reporting transcript preparation duties shall not be considered as
hours worked for the purposes of subsection (a) of this section if
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(A) such employee is paid at a per-page rate which is not less
than -
(i) the maximum rate established by State law or local
ordinance for the jurisdiction of such public agency,
(ii) the maximum rate otherwise established by a judicial or
administrative officer and in effect on July 1, 1995, or
(iii) the rate freely negotiated between the employee and the
party requesting the transcript, other than the judge who
presided over the proceedings being transcribed, and
(B) the hours spent performing such duties are outside of the
hours such employee performs other work (including hours for
which the agency requires the employee's attendance) pursuant to
the employment relationship with such public agency.
For purposes of this section, the amount paid such employee in
accordance with subparagraph (A) for the performance of court
reporting transcript preparation duties, shall not be considered in
the calculation of the regular rate at which such employee is
employed.
(7) For purposes of this subsection -
(A) the term "overtime compensation" means the compensation
required by subsection (a), and
(B) the terms "compensatory time" and "compensatory time off"
mean hours during which an employee is not working, which are not
counted as hours worked during the applicable workweek or other
work period for purposes of overtime compensation, and for which
the employee is compensated at the employee's regular rate.
(p) Special detail work for fire protection and law enforcement
employees; occasional or sporadic employment; substitution
(1) If an individual who is employed by a State, political
subdivision of a State, or an interstate governmental agency in
fire protection or law enforcement activities (including activities
of security personnel in correctional institutions) and who, solely
at such individual's option, agrees to be employed on a special
detail by a separate or independent employer in fire protection,
law enforcement, or related activities, the hours such individual
was employed by such separate and independent employer shall be
excluded by the public agency employing such individual in the
calculation of the hours for which the employee is entitled to
overtime compensation under this section if the public agency -
(A) requires that its employees engaged in fire protection, law
enforcement, or security activities be hired by a separate and
independent employer to perform the special detail,
(B) facilitates the employment of such employees by a separate
and independent employer, or
(C) otherwise affects the condition of employment of such
employees by a separate and independent employer.
(2) If an employee of a public agency which is a State, political
subdivision of a State, or an interstate governmental agency
undertakes, on an occasional or sporadic basis and solely at the
employee's option, part-time employment for the public agency which
is in a different capacity from any capacity in which the employee
is regularly employed with the public agency, the hours such
employee was employed in performing the different employment shall
be excluded by the public agency in the calculation of the hours
for which the employee is entitled to overtime compensation under
this section.
(3) If an individual who is employed in any capacity by a public
agency which is a State, political subdivision of a State, or an
interstate governmental agency, agrees, with the approval of the
public agency and solely at the option of such individual, to
substitute during scheduled work hours for another individual who
is employed by such agency in the same capacity, the hours such
employee worked as a substitute shall be excluded by the public
agency in the calculation of the hours for which the employee is
entitled to overtime compensation under this section.
(q) Maximum hour exemption for employees receiving remedial
education
Any employer may employ any employee for a period or periods of
not more than 10 hours in the aggregate in any workweek in excess
of the maximum workweek specified in subsection (a) of this section
without paying the compensation for overtime employment prescribed
in such subsection, if during such period or periods the employee
is receiving remedial education that is -
(1) provided to employees who lack a high school diploma or
educational attainment at the eighth grade level;
(2) designed to provide reading and other basic skills at an
eighth grade level or below; and
(3) does not include job specific training.
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