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2 Vand. L. Rev. 379 (1948-1949)
Overtime Pay under the Fair Labor Standards Act

handle is hein.journals/vanlr2 and id is 397 raw text is: OVERTIME PAY UNDER THE FAIR LABOR STANDARDS ACT PAUL H. SANDERS* Any rate of pay exceeding the statutory minimum that the parties to an employment agreement decide upon is permissible as far as the Federal Fair Labor Standards Act 1 is concerned. In general, too, the mode of payment is uncontrolled by the statute. Does this freedom of contract include the power to make arrangements with respect to the agreed-upon compensation which will be legally effective in determining liability under the statute? This question in- dicates in broad scope the most persistent controversy centering around the term regular rate of pay, 2.which, although undefined in the Act, is the required basis-for the computation of statutory overtime payments. That such a contro- versy on a matter of basic principle should continue to rage more than ten years after the effective date of FLSA suggests the existence of either confusion in court interpretations or dissatisfaction with such clear pronouncements as have been made. It may be fairly said that, at times, each of these situations has ob- tained. Dissatisfaction was the prevalent note after the United States Supreme Court's action at the end of its last term in Bay Ridge Operating Co. v. Aaron,3 the case involving the New York longshoremen. As this is written, it remains to be seen whether this will result in a general legislative modification of the precisely-stated definitions set forth in that decision. The Fair Labor Standards Act creates certain rights on the basis of in- dividual rather than group activity. Coverage depends upon what a particular individual employee dQes; extra compensation depends upon hours actually worked by the individual employee. Under the general requirements of the Act now prevailing, individual employees engaged in interstate commerce, or in the production of goods for such commerce, are to receive not less than 40 cents per hour 4 and one and one-half times their regular rate of pay for hours worked in excess of 40 per week.5 The latter provision is designated in the Act as one for maximum hours, although it imposes no absolute limitation. It is, of course, the basis for the overtime pay or time and one-half, which constitutes the Act's major significance under prevailing economic circum- * Professor of Law, Vanderbilt University .1. 52 STAT. 1063 (1938), 29 U. S. C. A. §§ 201-219 (1947)-hereafter referred to as FLSA and by section numbers (1 through 19) of the original Act. , 2. § 7(a), 29 U. S. C. A. § 207(a) (1947). See Note, 47 COL. L. REv. 1189 (1947);. 35 CALIF. L. REv. 589 (1947); 45 MIcH. L. REv. 1053 (1947); 31 MINN. L. Rav. 745 (1947). 3. 334 U. S. 446, 68 Sup. Ct. 1186, 92 L. Ed.-(1948) ; Note, 16 U. OF CHI. L. REv. 116 (1948; 17 GEO. WAsH. L. Rav. 278 (1949). 4. § 6(a). 5. § 7(a).

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