As explained in Sec. 778.210 of this part, a true bonus based on a percentage of total wages--both straight time and overtime wages--satisfies the Act's overtime requirements, if it is paid unconditionally. Such a bonus increases both straight time and overtime wages by the same percentage, and thereby includes proper overtime compensation as an arithmetic fact. Some bonuses, however, although expressed as a percentage of both straight time and overtime wages, are in fact a sham. Such bonuses, like the bonuses described in Sec. 778.502 of this part, are generally separated out of a fixed weekly wage and usually decrease in amount in direct proportion to increases in the number of hours worked in a week in excess of 40. The hourly rate purportedly paid under such a scheme is artificially low, and the difference between the wages paid at the hourly rate and the fixed weekly compensation is labeled a percentage of wage ``bonus.''
Example: An employer's wage records show an hourly rate of $5.62 per hour, and an overtime rate of one and one-half times that amount, or $8.43 per hour. In addition, the employer pays an alleged percentage of wage bonus on which no additional overtime compensation is paid: Week 1--40 hours worked:
40 hours at $5.62 per hour.................................. $224.80
Percentage of total earnings bonus at 33.45% of $224.80..... 75.20
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Total........................................................ 300.00
=========Week 2--43 hours worked:
40 hours at $5.62 per hour.................................. 224.80
3 hours at $8.43 per hour................................... 25.29
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Subtotal..................................................... 250.09
=========Percentage of total earnings bonus at 19.96% of $250.09....... 49.91
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Total........................................................ 300.00
=========Week 3--48 hours worked:
40 hours at $5.62 per hour.................................. 224.80
8 hours at $8.43 per hour................................... 67.44
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Subtotal..................................................... 292.24Percentage of total earnings bonus at 2.66% of $292.24........ 7.76
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Total........................................................ 300.00
This employee is in fact being paid no overtime compensation at all. The records in fact reveal that the employer pays exactly $300 per week, no matter how many hours the employee works. The employee's regular rate is $300 divided by the number of hours worked in the particular week, and his overtime compensation due must be computed as shown in Sec. 778.114. [46 FR 7319, Jan. 23, 1981]