Static educational checklist — not a calculator. No schedule-change inputs, no clopening engines, no live regular-rate math. Spot common FLSA § 778.222 red flags: when extra payments similar to call-back pay — including state/local predictability pay, insufficient-notice premiums, and between-shift / “clopening” rest premiums — may stay out of the regular rate as pay not for hours worked, when prearranged amounts must stay in, and when payroll collapses those extras with true overtime, show-up, call-back, or fair-workweek compliance labels. Distinct from the predictive-scheduling / fair-workweek compliance checklist, § 778.221 call-back, § 778.220 show-up, multi-state report-time / call-in, and premium-credit cheat-sheet pages.
Baseline — what § 778.222 covers (and does not)
Under 29 CFR § 778.222, the principles of § 778.221 also apply to certain extra payments similar to call-back pay — including payments under state or local scheduling laws — that compensate an employee for working unanticipated or insufficiently scheduled hours or shifts. The extra payment, over and above earnings for hours actually worked at the applicable rate (straight time or overtime), is treated as a payment not made for hours worked and may be excluded from the regular rate. Payments that are prearranged, however, may not be excluded. The regulation’s examples include: (a) extras for failure to give sufficient notice to report on regular days of rest or outside the regular schedule; (b) extras solely because the employee is called back before a specified number of hours between shifts (“rest period”); (c) pay mandated by state/local law for end-of-one-shift / start-of-next-shift pairs with fewer than the legally required hours between them (often called clopening); and (d) “predictability pay” mandated by state/local law when the employee does not receive requisite notice of a schedule change. This page does not audit NYC / Seattle / Chicago / OR / LA / Philly / SF ordinance compliance — use the predictive-scheduling checklist for that — and does not compute live regular rates.
Checklist — predictability-pay / clopening regular-rate red flags
Prearranged schedule-change or clopening premiums wrongly excluded from the regular rate. Flag “predictability,” “rest,” or “clopening” GL codes stripped from the regular-rate numerator when the extra work or shortened rest was planned in advance, posted on the original schedule, or otherwise prearranged. § 778.222 (like § 778.221) excludes only the unanticipated / insufficiently-scheduled excess — prearranged payments stay in the rate.
True unanticipated predictability-pay excess stuffed into the regular-rate numerator. Flag worksheets that fold the entire municipal / state predictability-pay lump into the FLSA regular rate when part of that sum is the § 778.222(d) extra over earnings for hours actually worked on an insufficiently noticed schedule change. A “everything goes into RR” macro does not cure the exclusion for qualifying unanticipated extras.
Clopening / between-shift rest premiums collapsed with true overtime premiums. Flag stubs that treat a state/local between-shift / clopening premium (§ 778.222(b)–(c)) as if it were a §§ 7(e)(5)–(7) overtime premium, or that omit the hours actually worked on the second shift from OT while still excluding the rest premium. The excess over pay for hours worked may stay out of the rate; the hours worked still count, and a true OT premium for those hours is a different analysis.
Unworked guarantee / premium hours padded into the overtime divisor. Flag payroll that adds the full contractual or ordinance “predictability block” or “rest premium hours” into the hours-worked denominator when those dollars are § 778.222 excess not paid for hours of employment. Actual hours on the changed or clopening shift are working time; the unanticipated extra is not.
§ 778.222 extras wrongly credited toward statutory overtime due. Flag settlement sheets that apply predictability / clopening / insufficient-notice extras as a credit against FLSA overtime premiums owed for hours actually worked over 40. Exclusion from the regular rate and non-creditability toward OT track together for call-back-similar payments — using the extra as an OT offset underpays.
Collapse with § 778.221 call-back, § 778.220 show-up, or state report-time floors. Flag one GL code used for (i) after-hours call-backs, (ii) start-of-shift show-up when little work is provided, (iii) multi-state reporting-time / call-in floors, and (iv) schedule-change predictability / clopening premiums. Different § 7(e) tracks and state floors; a shared “premium” bucket hides which dollars may leave the rate under § 778.222 versus which must stay in or follow another rule.
Fair-workweek compliance page treated as the regular-rate analysis (or vice versa). Flag audits that stop at “we paid NYC / Seattle / Chicago / OR / LA / Philly / SF predictability pay” without asking whether the amount was prearranged, whether only the excess over earnings for hours worked was excluded, and whether any of it was credited toward FLSA OT. Ordinance payment ≠ automatic § 778.222 exclusion hygiene.
Insufficient-notice premiums on regular rest days / outside schedule mixed with shift differentials or holiday premiums. Flag “rest-day call-in” or “outside schedule” extras (§ 778.222(a)) coded as night differentials (§ 778.207), special-day premiums (§ 778.203), or daily OT premiums (§ 778.202). Those Part 778 tracks have different inclusion / exclusion tests; a shared “premium” label is not a substitute for the unanticipated-hours analysis.
On-call / waiting-time myths and continuous-workday rebrands of predictability pay. Flag weeks where an on-call stipend or continuous-workday travel block is relabeled “predictability pay” to force a § 778.222 exclusion, or where true § 778.222 extras are treated as compensable waiting time under Part 785. Different questions: hours worked vs payments similar to call-back pay for unanticipated scheduling.
Stub coding and record gaps on schedule-change notice, clopening rest, and RR vs OT splits. Flag wage statements that never separate predictability / clopening extras from base wages or true OT, missing original vs revised schedule timestamps, destroyed notice records, and regular-rate worksheets that strip every “PRED” / “CLOP” code without a prearrangement / excess analysis. Record gaps turn every fair-workweek week into a he-said / she-said § 778.222 dispute.