[PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                              ________________________               U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          AUGUST 6, 2001
                                    No. 00-13092                        THOMAS K. KAHN
                              ________________________                       CLERK

                           D. C. Docket No. 99-08913-CV-SH

TRACY KLINEDINST,
                                                                          Plaintiff-Appellant,

                                            versus

SWIFT INVESTMENTS, INC.,
a Florida corporation d.b.a.
Fantastic Finishes of Palm Beach, Inc.
                                                                        Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                   (August 6, 2001)

Before TJOFLAT and WILSON, Circuit Judges, and RESTANI*, Judge.

____________________

       * Honorable Jane A. Restani, Judge, U.S. Court of International Trade, sitting by
designation.
WILSON, Circuit Judge:

      Tracy Klinedinst appeals from the district court’s grant of summary

judgment in favor of his former employer, Swift Investments. Klinedinst sued

Swift for failure to pay overtime in violation of the Fair Labor Standards Act

(FLSA), 29 U.S.C. §§ 201, et seq. The district court held that Klinedinst’s position

falls within an exemption to the Act for “commission” workers. Because the

district court incorrectly determined that the exemption applies, we vacate its grant

of summary judgment.

                                I. BACKGROUND

      Swift operates an auto repair and body shop. Klinedinst was employed as an

automobile painter for Swift. Klinedinst received a salary from Swift based on the

number of “flag hours” worked in a forty-hour work week.1 Klinedinst sued Swift

for violating the Fair Labor Standards Act (FLSA). He alleges that between

January 1, 1998 and December 31, 1998, he worked approximately two thousand

overtime hours beyond his forty-hour work week and approximately one thousand

additional overtime hours between January 1, 1999 and June 30, 1999. He




      1
       Although the “Employee New Hire Sheet” (the equivalent to an
employment contract) is not at issue in this dispute, it states that Swift intends for
Klinedinst to work forty-hour weeks.
                                           2
contends that Swift did not compensate him for this overtime pursuant to the

FLSA. Swift stipulated that Klinedinst was not paid overtime.

      For each repair job, Klinedinst was compensated according to a repair

estimate. The labor portion of the estimate was calculated by multiplying the

predetermined “flag hours” by the auto shop’s hourly rate. The “flag hours” were

derived from a database utilized by auto repair shops and insurance adjusters.

Thus, they did not necessarily reflect the actual time spent completing a job. If

more than or fewer than the predetermined number of flag hours were required to

complete a job, Swift would nevertheless pay the painter for the predetermined

number of hours even though he did not actually work that many hours.

      The hourly rate varied from $12 to $15 depending on the number of hours

worked per week and the number of hours allotted to the paint labor component of

the repair estimate. Klinedinst was compensated for each paint job he performed

based on the following formula: the “flag hours” allotted to the paint labor

component of the repair estimate was multiplied by his hourly rate. Swift did not

maintain records of the actual hours that Klinedinst worked, and Klinedinst was

paid for the maximum amount of flag hours, regardless of the actual hours worked.

Both parties refer to this compensation method as a “flat rate” system. Klinedinst

contends that although Swift applied this flat rate system, it deducted some of his


                                          3
predetermined flag hours and used them to compensate the detailers who worked

on the cars after he painted them.

        Both parties filed motions for summary judgment. The district court granted

Swift’s motion for summary judgment and denied Klinedinst’s motion. The

district court concluded that the overtime exception applied because Klinedinst’s

compensation under the flat rate system constituted commissions on services which

were exempt from the FLSA’s requirement of overtime pay and because

Klinedinst’s rate never fell below twelve dollars per hour so he never earned less

than one and a half times the minimum wage of five dollars and fifteen cents per

hour.

                                 II. DISCUSSION

        Summary judgment is appropriate when there are no genuine issues of

material fact and the movant is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c). We review the district court’s grant of summary judgment to

Swift de novo. See Strickland v. Water Works & Sewer Bd. of the City of

Birmingham, 

, 1203 (11th Cir. 2001) (involving cross-motions for

summary judgment).

        Generally, employers are required to pay employees overtime for hours

worked in excess of forty hours per week. The FLSA provides in pertinent part:


                                          4
      Except as otherwise provided in this section, no employer shall
      employ any of his employees who in any workweek is engaged in
      commerce or in the production of goods for commerce, or is
      employed in an enterprise engaged in commerce or in the production
      of goods for commerce, for a workweek longer than forty hours unless
      such employee receives compensation for his employment in excess
      of the hours above specified at a rate not less than one and one-half
      times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1). Swift contends that because Klinedinst worked on a

commission basis and it met the overtime exemption requirements, it was not

obligated to pay Klinedinst overtime. The district court agreed. We review to

examine whether Swift met the statutory and regulatory requirements of the

commission exemption.

              A. Did the payment system represent a commission?

      The issue before us is whether the district court properly concluded that

Swift met the commissioned work exemption to this provision.2 Whether

Klinedinst’s payments constituted commissions is an issue of law. Yet, it is an

issue that finds little illumination from the sparse case law and the vague


      2
        The commissioned work exemption as written in 29 U.S.C. § 207(i) states:
      No employer shall be deemed to have violated [the overtime
      provisions of the Act] by employing any employee of a retail or
      service establishment for a workweek in excess of [40 hours], if (1)
      the regular rate of pay of such employee is in excess of one and one
      half times the minimum [wage], and (2) more than half of his
      compensation for a representative period (not less than one month)
      represents commissions on goods or services.
                                          5
references in statutes and regulations. Nonetheless, it is the duty of the courts to

determine whether wage payment plans are in substantial compliance with FLSA.

We undertake that duty by construing the remedial statutory provisions both

narrowly and sensibly. See Walling v. A.H. Belo Corp., 

, 634-35

(1942); Brennan v. Valley Towing Co., Inc., 

, 110 (9th Cir. 1975);

Birdwell v. City of Gadsden, Ala., 

, 805 (11th Cir. 1992) (holding that

FLSA provisions are interpreted liberally in the employee’s favor and its

exemptions construed narrowly against the employer).

      Swift, as the employer, bears the burden of proving the applicability of a

FLSA exception by “‘clear and affirmative evidence.’” 

.

Swift avers that the flat rate system it utilized is a form of commission, which is

incentive-based and encourages efficiency and speed. Klinedinst was assigned an

hourly rate (flag rate) for a particular task, but if it took longer than the allotted

time, he would not be paid extra. If he completed the task sooner, however, he

would keep the difference. For example, deposition testimony reveals that whether

a technician took ten or thirty hours to complete a job, he would still be paid the

same. Specifically, Swift determined Klinedinst’s compensation per job by

multiplying the predetermined flag hours by his hourly rate. He was to receive

compensation under this formula regardless of whether he actually worked the


                                            6
predetermined flag hours. The flat rate of pay was not the hours of time it actually

took the worker to complete a job. It is a method of providing employees with an

incentive to “hustle” to finish their jobs in order to obtain a larger number of jobs

for greater compensation.

      To bolster the claim that the flat rate system constituted a commission, Swift

cites to the Wage and Hour Division of the Department of Labor’s Field

Operations Handbook:

      Some auto service garages and car dealerships compensate mechanics
      and painters on the following basis: The painter or mechanic gets so
      much a “flat rate” hour for the work he or she performs. A “flat rate”
      hour is not an actual clock hour. The painter or mechanic may work
      only 7, 8 or 9 hours a day and still receive credit for 10, 11 or 12, etc.,
      flat rate hours depending upon how much work he or she has done.
      Each job is assigned a certain number of hours for which the customer
      is charged, regardless of the actual time it takes to perform the job.
      The employee is given a certain proportion of that charge expressed in
      terms of so many dollars and cents per “flat rate” hour rather than in
      terms of a percentage of the charge to the customer. The dealer does
      not change the employee’s share per flat rate hour if the charge to the
      customer is changed. In such situations Wage-Hour will not deny that
      such payments represent “commissions on goods or services” for
      purposes of Sec. 7(i) (see IB 778.117 and 779.413(b)). Such
      employment will qualify for exemption under Sec. 7(i) provided all
      the other tests of the exemption are met.

Field Operations Handbook, Section 21h04(d). An agency’s internal directives to

its employees, however, are without the force of law. See Brennan v. Ace

Hardware Corp., 

, 376 (8th Cir. 1974) (the Labor Department’s Field


                                           7
Operations Handbook is without “the force and effect of law.”); Kirkland Masonry,

Inc. v. C.I.R., 

, 533 (5th Cir. 1980) (“Although federal agencies are

bound by their own regulations, a simple administrative directive to agency

employees does not suffice to create a duty to the public”).

      Although the Field Operations Handbook is not entitled to Chevron

deference,3 we find it persuasive. Further support for this interpretation of

commission may be found in 29 C.F.R. § 779.413(b), which states:

      Although typically in retail or service establishments commission
      payments are keyed to sales, the requirement of the exemption is that
      more than half the employee's compensation represent commissions
      "on goods or services," which would include all types of commissions
      customarily based on the goods or services which the establishment
      sells, and not exclusively those measured by "sales" of these goods or
      services.

See also Mechmet v. Four Seasons Hotel, Ltd., 

, 1175 (7th Cir. 1987)

(“persons not engaged in the sale of goods – receivers, trustees, bailees, and others

– are sometimes compensated in the form of what are commonly called

commissions, and . . . [may be considered] ‘commissions’ within the meaning of

29 U.S.C. § 207(i) if the other requirements of the section are satisfied”); Black’s



      3
       See Chevron, U.S.A., Inc. v. Natl. Resources Defense Council, Inc., 

, 844-45 (1984). Chevron held that if a statute was ambiguous, the courts
would defer to an agency’s reasonable interpretation of that statute. Id.; Bank of
America, N.A. v. FDIC, 

, 1314 (11th Cir. 2001).
                                          8
Law Dictionary 264 (7th ed. 1999) (“Commission: . . . 5. A fee paid to an agent or

employee for a particular transaction, usu. As a percentage of the money received

from the transaction”); Merriam-Webster’s Collegiate Dictionary 231 (10th ed.

1996) (same).

      The cumulative effect of these citations is persuasive because they support

the basic conception of a commission without undermining the purpose or logic

behind overtime.4 The flat rate at issue (1) provides workers with an incentive to

work quickly, while (2) paying them at a rate that exceeds minimum wage. The

function of a commission exemption as embodied by section 7(i) is to ensure that

workers who are paid on a commission basis are guaranteed to receive at least the

legislated minimum wage without requiring them to work overtime for it. See 29

U.S.C. § 207(i). Payments of between $12 and $15 per flagged hour provide

incentives for employees to work efficiently and effectively to the benefit of the

employer, who may then take on more customers at a greater profit margin, and the

employee, who reaps the benefits of increased flag hours regardless of the actual


      4
        The purpose of the FLSA-required overtime is two-fold: (1) to spread out
employment by placing financial pressure on the employer to hire additional
workers rather than employ the same number of workers for longer hours; and (2)
to compensate employees who for a variety of reasons worked overtime. See H.R.
Rep. No. 1452, 75th Cong., 1st Sess. (1937); S.Rep. No. 884, 75th Cong., 1st Sess.
(1937); Donovan v. Brown Equipment and Service Tools, Inc., 

, 152
(5th Cir. 1982); 

.
                                          9
amount of hours worked. With this in mind, we conclude that Klinedinst’s flat rate

wages constitute a “commission” but are only exempt from overtime pay if Swift

can establish that it has qualified for the overtime exemption provided in section

7(i). See Field Operations Handbook, Section 21h04(d).

      Section 7(i) states:

      No employer shall be deemed to have violated [the overtime
      provisions of the Act] by employing any employee of a retail or
      service5 establishment for a workweek in excess of [40 hours], if (1)
      the regular rate of pay of such employee is in excess of one and one
      half times the minimum [wage], and (2) more than half of his
      compensation for a representative period (not less than one month)
      represents commissions on goods or services.

29 U.S.C. § 207(i). As it is undisputed that all of Klinedinst’s wages were derived

from the flat rate system and we have determined that the aforementioned system

constitutes a commission, the second component of section 7(i) is fulfilled.

                      B. What was the regular rate of pay?

      We next review whether Swift satisfied the first component of the

exemption, which is the regular rate of pay. The “regular rate of pay” is the

“hourly rate actually paid the employee for the normal, nonovertime workweek for

which he is employed” and “by its very nature must reflect all payments which the



      5
        Automobile repair shops have been explicitly recognized as retail
establishments. See 29 C.F.R. § 779.320.
                                         10
parties had agreed shall be received regularly during the workweek, exclusive of

overtime payments.” 29 C.F.R. §779.419(b) (quoting Walling v. Youngerman-

Reynolds Hardwood Co., 

(1945)). The regular rate is determined by

dividing the employer’s total compensation during the workweek by the number of

hours worked. See 29 C.F.R. §779.419(b) (citing Overnight Motor Co. v. Missel,

(1942)).

        Swift states that Klinedinst’s regular rate of pay was between $12 and $15

per hour. Assuming Klinedinst worked only forty hours per week, this represents

at least double the then minimum wage of $5.15 per hour. See 29 U.S.C. §

206(a)(1).6 However, both parties offer contradictory statements as to the number

of hours Klinedinst actually worked and both at some point during the summary

judgment proceedings admit that this disagreement forms the basis of an active

factual dispute. Nonetheless, neither party kept records of the number of hours

Klinedinst worked. Thus, neither we nor the district court can ascertain from the

record developed to date Klinedinst’s “regular rate” to compute his overtime

compensation. Swift was obligated to “maintain and preserve” records of the

“regular hourly rate of pay for any workweek in which overtime compensation is



        6
         This reflects the minimum wage for the period of January 1998 to June
1999.
                                          11
due under [§ 207(a)] . . . . ” 29 C.F.R. § 516.2(a)(6)(i). It was also obligated to

maintain records of the “[h]ours worked each workday and total hours worked each

workweek.” 29 C.F.R. § 516.2(a)(7). Swift failed to do so. The number of hours

worked per week is a genuine issue of material fact for the factfinder. Cf. Valley

Towing 

(appellee failed to record applicable hourly rates

or maintain records of both straight overtime hours worked and hours spent

working on commission; on remand, the district judge was to order appellees to

comply with the applicable record keeping requirements and determine overtime

pay award since record was sufficient for this determination). As Klinedinst

maintained that he worked at least 3000 hours more than the regular forty-hour

week during his period of employment, this is still very much a live issue.

      Therefore, the district court incorrectly concluded that Klinedinst’s regular

rate of pay never fell below twelve dollars per hour. In making this determination,

the court improperly assumed that Klinedinst never worked more hours than the

number of hours paid under the flat rate system. As both parties acknowledge, the

number of hours Klinedinst actually worked did not necessarily equal the number

of hours for which he was paid under the flat rate system and, in any given week,

the number of hours actually worked could have been greater than or less than the

number of flag rate hours for which Klinedinst was paid. See 29 C.F.R. § 778.117


                                          12
(“Commissions (whether based on a percentage of total sales or of sales in excess

of a specified amount, or on some other formula) are payments for hours worked

and must be included in the regular rate. This is true regardless of whether the

commission is the sole source of the employee's compensation or is paid in

addition to a guaranteed salary or hourly rate, or on some other basis . . .”). As a

result, the assumption of a static forty-hour work week was error. Without

knowing the regular rate of pay, we cannot determine whether it is greater than one

and one half times the minimum wage. Hence, remaining factual inquiries

preclude the legal determination of whether the section 207(i)(1) element of the

overtime payment exception is satisfied.

                                III. CONCLUSION

      Swift’s flat rate system constitutes a form of commission payment.

Klinedinst, however, is still entitled to overtime compensation pursuant to the

FLSA unless Swift meets the exemption requirements of section 7(i) of the FLSA.

Because there is not enough evidence in the record to determine whether Swift met

the first component of the exemption requirement – the regular rate of pay – we

find that the district court erred in granting summary judgment to Swift.

Accordingly, the district court’s order is VACATED and REMANDED for further

proceedings consistent with this opinion.


                                           13
RESTANI, Judge, concurring in part, dissenting in part:

      I concur in the majority’s decision to vacate the district court’s order and to

remand for a determination of Klinedinst’s regular rate of pay. I disagree,

however, with the majority’s conclusion that Swift’s flat rate pay system results in

“commissions” within the meaning of 29 U.S.C. § 207(i) (1994), so that the

questions to be determined on remand are whether Klinedinst had any employment

in excess of 40 hours per week and whether such work was compensated at one

and one-half times the minimum wage.

      The majority acknowledges that the FLSA is a remedial statute which is to

be construed against the employer, so that the employer must prove its entitlement

to an FLSA exception by “clear and affirmative evidence.” Birdwell v. City of

Gadsden, 

, 805 (11th Cir. 1992) (quoting Donovan v. United Video,

Inc., 

, 581 (10th Cir. 1984)). The majority, however, applies an

expansive definition of “commissions” in order to bring the method of pay at issue

here within the exception set forth in § 207(i). It seems to accord any payment that

is based on a percentage of the payment to the employer status as a “commission”

payment. By any ordinary understanding of the meaning of commissions, the

payments to Klinedinst are not commissions. Klinedinst does not generate sales or




                                         14
jobs for his employer. Rather, he is an ordinary wage-earning employee

performing service work in an automobile garage.

      Not every method of payment which might encourage efficiency is a

commission method. For example, piecework pay is not a commission. See 29

C.F.R. § 778.111(a) (2000) (overtime compensated at one and one-half piece

rates).1 Further, work in excess of forty hours per week is entitled to extra half-

time pay if the worker is compensated by the day or by the job. 29 C.F.R. §

778.112.

      Although sales commissions are the most common form of commissions,

there is no doubt that some other forms of payment representing a percentage of

the value of goods or services are easily recognized as commissions. Indeed, in

finding that banquet waiters earned “commissions” under § 207(i), the Seventh

Circuit notes that some persons paid on a percentage basis, such as receivers,

trustees, and bailees, are not engaged in generating sales and their compensation is

commonly called “commissions.” Mechmet v. Four Seasons Hotels, Ltd., 

, 1175 (7th Cir. 1987). Nonetheless, because the meaning of “commissions” in

§ 207(i) is unclear and because it recognized that a simple dictionary definition



      1
     A flat fee for cleaning used cars was found to be piece work. See Op. Ltr.
FLSA-1042 (Dep’t of Labor October 14, 1982).
                                          15
could result in unintended loopholes, the Seventh Circuit carefully examined the

purposes of the FLSA and the particular context of the banquet waiters’

employment before recognizing an expansion of the usual categories of

commission earners. 

      An examination of the purposes of the FLSA indicates that Klinedinst’s

employment does not fit the exception. One purpose of the FLSA’s time and a half

provisions was to prevent workers from working abnormally long hours and

thereby taking jobs away from workers who preferred more normal hours.

Another purpose was to spread work to reduce unemployment. A third purpose

was to protect workers from impairing their health or incurring more accidents

from tiredness. See H.R. Rep. No. 75-1452, at 8-9 (1937); S. Rep. No. 75-884, at

3-5 (1937); 

. Unlike the banquet workers in

Mechmet, who worked irregular and nonhazardous jobs, where accidents due to

tiredness may not be a large concern, automobile repair, including painting, can be

hazardous, and there is nothing to suggest that this work does not result in regular

employment. Further, banquets were found to be large ticket items, and the

business was described as “feast or famine.” 

.

Reliable, long range estimation of the need for workers and the length of their

hours was not possible. See 

not describe the case at hand. Swift has


                                         16
not shown that Klinedinst’s type of employment is not exactly the type of

employment that Congress intended be covered by the FLSA.

      Further, the majority, while recognizing that the Labor Department’s Field

Operations Handbook is not entitled to Chevron deference, nonetheless relies on it.

The Labor Department appears somewhat at sea on the issue of commissions.2 In

an opinion letter regarding dancers who were compensated principally from a

mandatory $5.00 charge per dance collected by the dancers for the club, the Labor

Department stated that the charge was a flat fee not based on the value of the

service and was therefore not a commission.3 Op. Ltr. FLSA-1332 (Dep’t of Labor

Nov. 19, 1996). The Department also stated:

      [29 U.S.C. § 207(i)] is designed to exempt those employees who can
      increase their productivity, and hence, their earning, by applying their
      ingenuity, skill and experience to tasks which will vary in difficulty
      from job to job. These types of employees perform a service that has
      an identifiable monetary value to the customer, but the amount of time
      and effort required to complete the service and the complexity of the
      task performed may often vary from job to job.

29 C.F.R. § 779.413(b), also relied upon by the majority, is entitled
to deference, it does not define “commissions”; it merely recognizes that
commissions may be based on either sales or services, as we acknowledge.
      3
       The letter is also entitled to deference only to the extent it has power to
persuade. See Christensen v. Harris County, 

, 587 (2000).
                                          17
      Putting aside the fact that the dancers could actually generate profits for the

employer by selling more dances, and consequently look more like commission

earners than banquet waiters, there was no reliance in either the Field Operations

Handbook or in this case on increase in productivity based on ingenuity, skill and

experience. Labor’s opinion letter seems to represent a narrow view of what

constitutes a § 207(i) commission, perhaps based on its unwillingness to accord

any value to the particular service at issue. On the other hand, the portions of Field

Operations Handbook applicable to garage workers relied on by the majority

presents an expansive view. Neither expression of Labor’s position reflects

persuasive reasoning.4

      The FLSA accepts that the willingness of workers to contract for a particular

method of payment is not controlling. Whatever one’s view of the current efficacy

of this 1937 remedial legislation, it is not our place or the Labor Department’s to

circumvent it by adopting a definition of commission not clearly intended by

Congress. Because there is considerable doubt as to whether Congress intended a

payment plan such as Swift’s to qualify as a commission plan under § 207(i), I


      4
       See Skidmore v. Swift & Co., 

, 140 (1944) (“The weight of [an
agency’s] judgment will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all the factors which give it power to persuade, if lacking
power to control.”).
                                          18
would hold that Swift has failed in its burden to demonstrate that it satisfies the

exception to FLSA’s time-and-a-half provisions.




                                          19