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(1) While it is permissible for an employer and an employee to agree upon different base rates of pay for different types of work, it is settled under the Law that where a rate has been agreed upon as applicable to a particular type of work the parties cannot lawfully agree that the rate for that work shall be lower merely because the work is performed during the statutory overtime hours, or during a week in which statutory overtime is worked. Since a lower rate cannot lawfully be set for overtime hours it is obvious that the parties cannot lawfully agree that the working time will not be paid for at all. An agreement that only the first 8 hours of work on any days or only the hours worked between certain fixed hours of the day or only the first 40 hours of any week will be counted as working time will clearly fail of its evasive purpose. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be compensated unless authorized in advance, will not impair the employee's right to compensation for work which he is actually suffered or permitted to perform.

(2) An agreement not to compensate employees for certain nonovertime hours stands on no better footing since it would have the same effect of diminishing the employee's total overtime compensation. An agreement, for example, to pay an employee whose maximum hours standard for the particular workweek is 40 hours, $2 an hour for the first 35 hours, nothing for the hours between 35 and 40 and $3 an hour for the hours in excess of 40 would not meet the overtime requirements of the law. Under the principles set forth, the employee would have to be paid $10 for the 5 hours worked between 35 and 40 before any sums ostensibly paid for overtime could be credited toward overtime compensation due under the law.

History: Sec. 39-3-403, MCA; IMP, Sec 39-3-405, MCA; Eff. 12/31/72.

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