[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR778.218]

[Page 379-380]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 778_OVERTIME COMPENSATION--Table of Contents
 
    Subpart C_Payments That May Be Excluded From the ``Regular Rate''
 
Sec. 778.218  Pay for certain idle hours.

    (a) General rules. Payments which are made for occasional periods 
when the employee is not at work due to vacation, holiday, illness, 
failure of the employer to provide sufficient work, or other similar 
cause, where the payments are in amounts approximately equivalent to the 
employee's normal earnings for a similar period of time, are not made as 
compensation for his hours of employment. Therefore, such payments may 
be excluded from the regular rate of pay under section 7(e)(2) of the 
Act and, for the same reason, no part of such payments may be credited 
toward overtime compensation due under the Act.
    (b) Limitations on exclusion. This provision of section 7(e)(2) 
deals with the type of absences which are infrequent or sporadic or 
unpredictable. It has no relation to regular ``absences'' such as lunch 
periods nor to regularly scheduled days of rest. Sundays may not be 
workdays in a particular plant, but this does not make them either 
``holidays'' or ``vacations,'' or days on which the employee is absent 
because of the failure of the employer to provide sufficient work. The 
term holiday is read in its ordinary usage to refer to those

[[Page 380]]

days customarily observed in the community in celebration of some 
historical or religious occasion; it does not refer to days of rest 
given to employees in lieu of or as an addition to compensation for 
working on other days.
    (c) Failure to provide work. The term ``failure of the employer to 
provide sufficient work'' is intended to refer to occasional, 
sporadically recurring situations where the employee would normally be 
working but for such a factor as machinery breakdown, failure of 
expected supplies to arrive, weather conditions affecting the ability of 
the employee to perform the work and similarly unpredictable obstacles 
beyond the control of the employer. The term does not include reduction 
in work schedule (as discussed in Sec. Sec. 778.321 through 778.329), 
ordinary temporary layoff situations, or any type of routine, recurrent 
absence of the employee.
    (d) Other similar cause. The term ``other similar cause'' refers to 
payments made for periods of absence due to factors like holidays, 
vacations, sickness, and failure of the employer to provide work. 
Examples of ``similar causes'' are absences due to jury service, 
reporting to a draft board, attending a funeral of a family member, 
inability to reach the workplace because of weather conditions. Only 
absences of a nonroutine character which are infrequent or sporadic or 
unpredictable are included in the ``other similar cause'' category.