How does FLSA 778.119 deferred identifiable commission work?

When commission cannot be computed until after the regular payday, the employer may pay overtime exclusive of the commission. When the commission is ascertained, apportion it to the workweeks in which it was earned and pay additional overtime equal to one-half of the increase in the hourly rate attributable to the commission for that week times the overtime hours in that week.

Classic five 10h at $20 plus identifiable $175?

Provisional pay exclusive of commission is $1,100. Add identifiable commission $175 and additional half-time $17.50 (half of $3.50/h × 10 OT hours). Total $1,292.50.

FLSA 778.119 Deferred Identifiable Commission — Provisional OT Then Additional Half-Time

Q: Same as /flsa-778-118-weekly-commission/?

No. 778.118 starts from a commission already paid on a workweek basis. 778.119 is the deferred path: provisional OT first, then additional OT when the week share is ascertained. End math matches once the week share is known (same $150 → $1,265).

Q: Same as /flsa-778-120-deferred-commission/?

No. 778.120 allocates deferred commissions that cannot be tied to particular workweeks (equal-week or equal-hour). 778.119 applies when the commission is identifiable to particular earning weeks.

Q: Same as /flsa-7i-commission/?

No. 7(i) can eliminate weekly OT for qualifying retail/service employees. 778.119 computes the additional OT still due when deferred commission enters the regular rate.

FLSA 778.119 deferred identifiable commission — provisional OT then additional half-time

29 CFR § 778.119 (with §§ 778.117–778.120; 29 U.S.C. § 207): when commission cannot be computed until after payday, pay overtime exclusive of the commission; when ascertained, apportion to the earning workweek and pay additional OT = ½ × (commission÷hours) × OT hours. Classic $20 × five 10h + identifiable $175 → provisional $1,100 + $175 + $17.50 → $1,292.50 vs /overtime/ $1,100 vs 778.118 $1,265 vs 778.120 $1,205.60 vs 778.303 $1,127.50 vs 785.48 $1,137.50.

How 778.119 pays

Two-phase deferred. Section 778.119 covers commissions that cannot be calculated until after the regular payday for the workweek. The employer may first pay overtime at not less than one and one-half times the hourly rate exclusive of the commission. When the commission can be computed and paid, additional overtime due from including the commission in the regular rate must also be paid.

Apportion to earning weeks. As a general rule, apportion the commission back over the workweeks of the period during which it was earned. For each overtime week, additional compensation is not less than one-half of the increase in the hourly rate attributable to the commission for that week multiplied by the overtime hours in that week.

Not 778.118 / not 778.120 / not 7(i) / not waiting-time. § 778.118 starts from a commission already paid on a workweek basis. § 778.120 allocates when commissions are not identifiable to particular weeks (equal-week / equal-hour). § 207(i) can wipe weekly-40 OT. This page assumes OT is due and the deferred amount is identifiable to the punched workweek.

Classic · $20 × five 10h + identifiable $175 → provisional $1,100 + $175 + additional $17.50 → $1,292.50.
Same $96 as 778.120 classic share · five 10h @ $20 → $1,205.60.
Same $150 as 778.118 classic · five 10h @ $20 → $1,265 (end math matches once the week share is known).
Zero commission · five 10h @ $20 → $1,100.
Identifiable $225 · five 10h @ $20 → $1,347.50.

Sources

29 CFR § 778.119 — Deferred commission payments—general rules (Cornell LII, HTTP 200)
29 CFR § 778.119 — eCFR (HTTP 200)
29 CFR § 778.119 — GovInfo CFR XML (HTTP 200)
29 U.S.C. § 207 — Maximum hours (HTTP 200)
WHD Fact Sheet #23 — Overtime Pay (PDF, HTTP 200)
/flsa-778-118-weekly-commission/ — § 778.118 already-weekly cousin
/flsa-778-120-deferred-commission/ — § 778.120 equal-allocation cousin
/flsa-7i-commission/ — § 207(i) cousin
/massachusetts-commission-overtime/ — MA Sullivan exclude cousin
/overtime/ — ordinary after-40 baseline

FAQ

Classic five 10h @ $20 + identifiable $175?

Provisional $1,100; commission $175; additional half-time $17.50; total $1,292.50.

Same as /flsa-778-118-weekly-commission/?

No. 778.118 starts from an already-weekly commission. 778.119 is deferred: provisional OT first, then additional OT when the week share is ascertained. Same $150 end math → $1,265.

Same as /flsa-778-120-deferred-commission/?

No. 778.120 equal-allocates when commissions cannot be tied to particular weeks. 778.119 applies when the commission is identifiable to the earning week.

Same as /flsa-7i-commission/?

No. 7(i) can eliminate weekly OT. 778.119 computes the additional OT still due when deferred commission enters the regular rate.

What if commissions are not identifiable to weeks?

See § 778.120 equal-week / equal-hour allocation — not this identifiable-week page.