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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
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
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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