* on a Farm 11. The term "practices (including any forestry or lumbering operations) performed on a farm as an incident to or in conjunction with" farming operations, involves substantially the same inquiries as those discussed in paragraph 10. It should be observed, however, that since these practices must be performed on a farm, one of the activities listed in the statute, namely, delivery to market, cannot normally be one of the included practices, for that involves working off the farm. Hence, employees of independent contractors engaged in transporting to market agricultural or horticultural commodities, dairy products, poultry, livestock, bees or their honey, and fur-bearing animals or their pelts, would not be exempt. With that exception, practices described in paragraph 10, even if performed by employees of someone other than the farmer, are excluded from the wage and hour coverage of the act, so long as they are performed on the farm and "as an incident to or in conjunction with such farming operations. Thus, if an independent contractor threshes wheat on a farm, his employees are not subject to the wage and hour provisions of the act while they are so engaged on the farm where the wheat is grown. So, too, employees of an independent contractor who inspect and cull flocks of poultry on a farm are exempt while they are working on the farm where such poultry is raised. Similarly, employees erecting a silo on a farm are exempt while they are working on such farm. Office Workers, Etc. 12. We have received inquiries concerning office help-secretaries, clerks, bookkeepers, etc.-night watchmen, maintenance workers, engineers, etc., who are employed by a farmer or on a farm in connection with the activities described in the definition of "agriculture" contained in section 3 (f). In our opinion such employees are exempt. Commission Brokers 13. Employees of commission brokers do not fall within the exemption for the reason that the practices performed by them do not constitute practices performed by a farmer nor do they take place on a farm. Complete and Partial Exemptions Under Section 7 (c) From the Hour Provisions for Employees of Employers Engaged in Certain Operations on Agricultural or Horticultural Commodities and Poultry or Livestock 14. Section 7 (c) of the act provides: "In the case of an employer engaged in the first processing of milk, whey, skimmed milk, or cream into dairy products, or in the ginning, and compressing of cotton, or in the processing of cottonseed, or in the processing of sugar beets, sugar beet mo 11 lasses, sugar cane, or maple sap, into sugar (but not refined sugar) or into syrup, the provisions of subsection (a) shall not apply to his employees in any place of employment where he is so engaged; and in the case of an employer engaged in the first processing of, or in canning or packing, perishable or seaof sonal fresh fruits or vegetables, or in the first processing, within the area of production (as defined by the Administrator), any agricultural or horticultural commodity during seasonal operations, or in handling, slaughtering, or dressing poultry or livestock, the provisions of subsection (a), during a period or periods of not more than fourteen workweeks in the aggregate in any calendar year, shall not apply to his employees in any place of employment where he is so engaged." Thus, it will be observed that this section grants the following exemptions: 1. A complete exemption from the hour provisions to employees "in any place of employment" where their employer is engaged in the first processing of milk, whey, skimmed milk, or cream into dairy products. 2. The same complete exemption where the employer is engaged in the ginning and compressing of cotton, or in the processing of cottonseed. 3. The same complete exemption where the employer is engaged in the processing of sugar beets, sugar beet molasses, sugar cane, or maple sap into sugar (but not refined sugar) or into syrup. 4. An exemption, for a period aggregating not more than 14 workweeks in any calendar year, from the hour provisions to employees "in any place of employment" where their employer is engaged in the first processing of, or in canning or packing, perishable or seasonal fresh fruits or vegetables. 5. The same partial exemption from the hour provisions where the employer is engaged in the first processing, within the area of production (as defined by the Administrator) of any agricultural or horticultural commodity during seasonal operations. 6. The same partial exemption from the hour provisions where the employer is engaged in handling, slaughtering, or dressing poultry or livestock. Where any exemption provided by section 7 (c) is applicable, there is no limit to the hours which the employees may work during the exempt period without being entitled to any overtime compensation under the act. First Processing of Milk, Whey, Skimmed Milk, or Cream Into 99 In 15. In considering what activities fall within this term it seems essential to determine the significance of the word "processing.' our opinion "processing" connotes a change in the form of the raw materials. It follows that "first processing" means the first such change in the form of the raw materials. It should be noted that with respect to the exemption now under discussion the raw materials may be either milk, whey, skimmed milk, or cream. The "first processing of milk" includes the making of cooled and pasteurized milk, skimmed milk, cream, whey, curd, dried milk, condensed milk, evaporated milk, and clabber. It is also clear from the congressional debates that the making of nonprocess cheese is included within the "first processing of milk." However, the further processing of nonprocess cheese into process cheese is not included. The "first processing of whey" includes the making of dried whey, whey cream, and milk sugar. The further processing of whey cream into whey butter is not included. * * * The "first processing of *** skimmed milk” includes the making of whey, wet casein, dried skimmed milk, condensed skimmed milk, and evaporated skimmed milk. The further processing of wet casein into dried casein and the further processing of the dried casein are not included. The "first processing of *** cream" includes the making of butter, buttermilk, dried cream, and sour cream. The further processing of butter into process butter is not included. As for the making of malted milk, ice cream mix, ice cream, and ice cream novelties, since their manufacture involves the use of ingredients other than milk, whey, skimmed milk, or cream to a substantial extent, and since their manufacture does not, in our opinion, constitute the first change in the form of the raw materials, such manufacture is not included within this exemption. Ginning and Compressing of Cotton 16. This term includes the operations of separating the cotton lint from the seed, pressing and wrapping such lint into bales, and then compressing such bales. The receiving and weighing of the lint, both before and after compressing, would also seem to be part of the compressing operation. Such operations, therefore, are included within the exemption. The storing of cotton, either before or after compressing, is not, in our opinion, included in the term "ginning and compressing of cotton." Support for this position is found in the fact that the word "storing" was in the bill at one time in connection with an exemption from the hour provisions and was subsequently deleted. (See also par. 23.) Processing of Cottonseed 17. This term includes cleaning and removing hulls and linters from the cottonseed, extracting oil therefrom and making cottonseed cake or meal. These operations may be performed simultaneously or consecutively, and one employer may perform all of them or only some of them. In any event, such operations are outside the purview of the overtime provisions. The refining of cottonseed oil, however, is not included in this exemption. Processing of Sugar Beets, Sugar Beet Molasses, Sugarcane, or Maple Sap, Into Sugar (But Not Refined Sugar) or Into Syrup 18. The term "refined sugar" is commonly understood to refer to the product of the refinement of "raw sugar." The term "raw sugar" describes the product of the first processing of sugarcane, which product normally is thereafter refined before it is consumed. The processing of sugarcane into raw sugar is within the exemption, the processing of raw sugar into refined sugar is not within the exemption. Likewise the processing of cane molasses and syrup into refined sugar is not exempt. Sugar obtained from sugar beets or sugar-beet molasses, by processes now in common use, is ready for direct consumption without further refining. Beet sugar thus produced is within the exemption. To hold otherwise would, in our opinion, render meaningless the words "processing of sugar beets, sugar-beet molasses." The following are also within the exemption: (1) The manufacture of maple sugar from maple sap and (2) the manufacture of syrup from sugarcane and maple sap. Operations performed on bagasse, such as removing same from the sugar mill, baling and compressing, are not included in the exemption, since such operations do not constitute the "processing of * sugarcane", and further such operations do not result in sugar or syrup. The exemption, it should be noted, is limited to the processing of sugarcane "into sugar or into syrup." * * First Processing of, or * ** Canning or Packing, Perishable or Seasonal Fresh Fruits or Vegetables 19. With respect to the operations included in this 14 workweeks exemption from the hour provisions of the act, it must first be pointed out that the exemption is applicable only if the operations are performed on perishable or seasonal fresh fruits or vegetables. Fresh fruits and vegetables are the fruits and vegetables in their raw and natural state as distinguished from them after they are "processed," canned, or dried. Although nuts may be fruits, they are not fresh fruits even when newly picked. Similarly, dried fruits, and dry edible beans cannot be considered fresh fruits or vegetables. If the fruits or vegetables in question are perishable or seasonal fresh fruits or vegetables as explained above, the following operations with respect to them fall within the exemption: Drying, freezing, preserving (for example, cucumbers or cherries in brine), packing, or canning (for an explanation of what constitutes "canning," reference is made to par. 34). The stemming of strawberries also seems to fall within the exemption. The following operations are not exempt for they are not performed on fresh fruits or vegetables; making and canning of vinegar, canning of baked beans, chili, and tamales, crystalizing of citrus peel, making and canning of marmalade, repacking or recanning fruits and vegetables, producing wine from grape juice, and drying of citrus waste for conversion into cattle food. The storing of fruits and vegetables in a storage house does not seem to be a "first processing" operation and, hence, is not exempt. First Processing, Within the Area of Production (as Defined by the Administrator), of Any Agricultural or Horticultural Commodity During Seasonal Operations 20. No attempt will be made here to discuss the expression "area of production," which limits this 14 workweeks exemption. For the Administrator's definition, reference is made to Regulations, Part 536, as amended, and to press release R-334 explaining the definition. The term "any agricultural or horticultural commodity" seems designed to cover any such commodity not otherwise mentioned in the subsection. Consequently, it does not include milk, whey, skimmed milk, cream, cotton, cottonseed, sugar beets, sugar-beet molasses, sugarcane, maple sap, perishable or seasonal fresh fruits or vegetables, poultry, or livestock. Further, the term "agricultural or horticultural commodity" connotes the commodity as it comes from the farm and before any change is effected in its natural state. Thus, since nut meats, for example, are not agricultural commodities, the roasting thereof is not included in the exemption provided by this section. Similarly, since commercial fertilizer is composed of various substances, at least some of which are not agricultural commodities, it cannot be said that its manufacture is the processing of an agricultural commodity. As set forth above, "first processing" connotes the first change in the form of the raw materials. Congress apparently did not mean to include in the exemption such operations as the manufacture of leather, the baking of bread, the manufacture of rope from hemp, the manufacture of cigars, etc., the spinning of thread, the manufacture of tallow, etc., although these operations may be the processing of materials originally produced from agricultural commodities. Among operations included in the exemption are the following: 1. Grains.-Hulling, shelling, cracking, or grinding of whole grains, including the milling of flour. The further processing of corn into cornflakes, rice into puffed rice, and the making of malt or alcoholic beverages are not included. 2. Forage crops.-Grinding. 3. Seeds, beans and peas.-Hulling; extracting oil from flaxseed or linseed. 4. Nuts.-Roasting and extracting oil from unshelled nuts, shelling and picking. The further processing of shelled nuts is not included. 5. Fibre crops.-Decorticating. 6. Tobacco. Stemming, redrying, and fermenting. 7. Eggs.-Breaking and separating. Grading, candling, refrigerating, buying, and selling eggs are not included. (See also par. 33, subsec. 1.) 8. Fur.-Scraping and drying. 9. Honey.-Heating, scraping, and straining. |