By now the regular rate’s math is familiar from Chapter 7: it is total remuneration for the workweek divided by the hours actually worked in that workweek, not a number an employer selects. Federal overtime regulations (§ 778.316) make explicit what that arithmetic already implies — an employer and an employee can agree on different base rates for different kinds of work, but they cannot lawfully agree that the rate for a given kind of work drops simply because the hours fall in overtime, or that certain hours (the first eight of a day, the hours worked between certain fixed hours of the day, the first 40 of a week) simply will not count as working time. An employer’s announcement that unauthorized overtime will not be compensated does not change what is owed for work the employer actually suffered or permitted the employee to perform.

That principle is why the artificial regular-rate schemes described in the Department of Labor’s overtime rules at § 778.500 fail, and why they keep failing under new names. An employer can set an hourly rate low, pair it with a guarantee that pay will be topped up to match a piece-rate total whenever the low rate falls short, and call the top-up a bonus or a make-up payment — the label does not change the fact that hourly earnings were never the employee’s sole source of pay. Where compensation comes from an hourly rate plus bonuses, commissions, furnished facilities (such as employer-provided lodging), or pay nominally assigned to idle hours, the regular rate is the quotient of total compensation from all those sources divided by hours worked that week, not the low hourly figure written on the pay stub. The Supreme Court reached exactly that result in Walling v. Youngerman-Reynolds Hardwood Co., recomputing the regular rate from total piece-rate earnings divided by total hours despite the employer’s separately stated hourly rate; the same result follows whether the make-up amount is called a guarantee, a bonus, or anything else, because a fixed salary or a lump sum cannot substitute for the underlying division.

The same refusal to accept an employer’s label extends past the regular rate to whether hours count as worked at all. As covered in Chapter 6, the suffer-or-permit standard for hours worked is not something a custom, contract, or agreement can narrow — Department of Labor regulations on hours worked (§ 785.8) apply that same principle to time an employer and employee have simply agreed, by custom or contract, not to count. The statute itself builds in two deliberate, narrow exceptions to that principle. One is the Portal Act carve-out covered in § 6.4, under which certain preliminary (before-work) and postliminary (after-work) travel is compensable only if a contract or an established custom at the workplace makes it so. The other is Section 3(o) of the Act, which lets a custom or practice under a bona fide collective-bargaining agreement determine whether clothes-changing and washing time counts as hours worked (§§ 785.9(b), 785.26). Both are exceptions the statute itself creates, not loopholes an employer can open by declaring a pay plan exempt — everywhere else, whatever the plan is called, the total-pay-over-total-hours math is what a court will apply.