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ities constituting “production” of the goods for agement, sales, and shipping personnel, and maincommerce are defined in section 3(j) of the Act. tenance, custodial, and protective employees who These are not limited to such work as manufactur perform, as a part of the integrated effort for the ing but include handling or otherwise working on production of the goods for commerce, services regoods intended for shipment out of the State either lated to such production or to such goods or to the directly or indirectly or for use within the State plant, equipment, or personnel by which the proto serve the needs of the instrumentalities or facili duction is accomplished. ties by which interstate or foreign commerce is
Section 800.8.-“Closely related” and “directly carried on. See United States v. Darby, 312 U.S.
essential” activities. 100; Alstate Constr. Co. v. Durkin, 345 U.S. 13. Employees engaged in any closely related process
As previously noted in section 800.7 an employed or occupation directly essential to such produc
is engaged in the production of goods for intertion of any goods, whether employed by the pro
state or foreign commerce within the meaning of ducer or by an independent employer, are also en
the general coverage provisions of the Act even if
his work is not an actual and direct part of such gaged, by definition, in “production”. See section 800.8 and the detailed discussion in Part 776 of production, so long as he is engaged in a process or this chapter. Further, the courts have recognized
occupation which is "closely related" and "directly
essential” to it. This is true whether he is emthat an enterprise producing goods for commerce does not accomplish the actual production of such
ployed by the producer of the goods or by someone goods solely with employees performing physical
else who provides goods or services to the producer. labor on them. Thus, in Borden v. Borella, 325
See in this connection Kirschbaum v. Walling, 316 U.S. 679, it was held that employees engaged in
U.S. 517, and Mitchell v. Joyce Agency, 348 U.S. the administration, planning, management, and
945, affirming 110 F. Supp. 918. A full discussion control of the various physical processes together
of "closely related" and "directly essential” work with the accompanying clerical and accounting ac
is contained in Part 776 of this chapter. Typical tivities are, from a productive standpoint and for
of employees covered under these principles are purposes of the Act, "actually engaged in the pro
bookkeepers, stenographers, clerks, accountants,
and auditors and other office and white-collar duction of goods for commerce just as much as are those who process and work on the tangible
workers, and employees doing payroll, timekeepproducts” in the manufacturing plants or other
ing, and time study work for the producer of producing facilities of the enterprise.
goods; employees in the personnel, labor relations, (b) Typically, but not exclusively, employees
safety and health, advertising, promotion, and engaged in the production of goods for interstate
public relations activities of the producing enteror foreign commerce include those who work in
prise; work instructors for the producers; emmanufacturing, processing, and distributing estab
ployees maintaining, servicing, repairing or lishments, including wholesale and retail establish
improving the buildings, machinery, equipment, ments, that “produco” (including handle or work
vehicles or other facilities used in the production on) goods for such commerce. This includes
of goods for commerce, and such custodial and proeveryone employed in such establishments, or else
tective employees as watchmen, guards, firemen, where in the enterprises by which they are oper
patrolmen, caretakers, stockroom workers and ated, whose activities constitute "production" of
warehousemen; and transportation workers bringsuch goods under the principles outlined in para
ing supplies, materials, or equipment to the prograph (a) of this section. Thus, employees who
ducer's premises, removing waste materials theresell, process, load, pack, or otherwise handle or
from, or transporting materials or other goods, or work on goods which are to be shipped or delivered
performing such other transportation activities, as outside the State either by their employer or by
the needs of production may require. These another firm, and either in the same form or as a
examples are illustrative, rather than exhaustive, part or ingredient of other goods, are engaged in
of the employees who are "engaged in the prothe production of goods for commerce within the
duction of goods for commerce” by reason of percoverage of the Act. So also are the office, man
forming activities closely related and directly essential to such production.
Section 800.9.–What goods are considered as
produced for commerce. Goods (as defined in 3(i) of the Act) are “produced for commerce" if they are "produced, manufactured, mined, handled or in any other manner worked on” in any State for sale, trade, transportation, transmission, shipment, or delivery, to any place outside thereof. Goods are produced for commerce where the producer intends, hopes, expects, or has reason to believe that the goods or any unsegregated part of them will move (in the same or in an altered form or as a part or ingredient of other goods) in interstate or foreign commerce. If such movement of the goods in commerce can reasonably be anticipated by the producer when the goods are produced, it makes no difference whether he himself or the person to whom the goods are transferred puts the goods in interstate or foreign commerce. The fact that goods do move in interstate or foreign commerce is strong evidence that the producer intended, hoped, expected, or had reason to believe that they would so move. Goods may also be produced "for commerce” where they are to be used within the State and not transported in any form across State lines. . This is true where the use to which they are put is one which serves the needs of the instrumentalities or facilities by which interstate or foreign commerce is carried on within the State. These principles are discussed comprehensively in Part 776 of this chapter. Section 800.10.-Coverage is not based on
amount of covered activity. The act makes no distinction as to the percentage, volume, or amount of activities of either the employee or the employer which constitute engaging in commerce or in the production of goods for commerce. (Mabee v. White Plains Publishing Co., 327 U.S. 128; United States v. Darby, 312 U.S. 100.) As explained more fully in Part 776 of this chapter, the law is settled that every employee whose activities in commerce or in the production of goods for commerce, even though small in amount, are regular and recurring, is considered “engaged in commerce or in the production of goods for commerce". Also, under the definition in section 3(s) of the act, an enterprise described in any of the four numbered clauses of the subsection is an enterprise "engaged in commerce
or in the production of goods for commerce” if, in its activities, some employees are so engaged, “including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person". (32 F.R. 2378, February 3, 1967) Section 800.11.-“Enterprise" coverage.
The scope of the added coverage on an enterprise basis, which was provided by amendments to the Act, is determined with reference to the special definitions of the term "enterprise" in section 3(r) of the Act and of the term “enterprise engaged in commerce or in the production of goods for commerce" under section 3(s). Under these enterprise coverage provisions, if an enterprise or establishment is an "enterprise engaged in commerce or in the production of goods for commerce" as defined and delimited in section 3(s) of the Act, every employee employed in such enterprise or by such establishment is within the coverage of the minimum wage and the equal pay provisions, except as otherwise specifically provided by the Act. “Enterprise" coverage is discussed comprehensively elsewhere in this chapter. A detailed discussion of the statutory definition of "enterprise" and of enterprise coverage as it relates to enterprises which have retail or service establishments and as it relates to gasoline service establishments is contained in Part 779 of this chapter. Section 800.12.-Exemptions from section 6
provided by section 13. The equal pay provisions do not apply to employees exempted from the provisions of section 6 under any provision of section 13(a) of the act. The following employees are among those excluded if their employment fully satisfies all the statutory conditions for exemption : Bona fide executive, administrative, and professional employees, including academic administrative personnel and teachers in elementary and secondary schools, and outside salesmen, as defined in regulations (see Part 541 of this chapter); employees of certain retail or service establishments (see Part 779 of this chapter); employees of certain amusement or recreational establishments (see Act, sec. 13(a) (3)); employees of certain small newspapers (see Act,
sec. 13(a) (8)); employees of motion picture theaters (see Act, sec. 13(a) (9)); switchboard operators of independent telephone companies which have fewer than 750 stations (see Act, sec. 13(a)
(10)); employees on small farms and certain hand
SUBPART B-THE EQUAL PAY PROVISIONS
THE STATUTORY PROVISIONS
Section 800.100.-Section 6(d) of the Act.
cerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work. The Equal Pay Act of 1963 amended section 6 of the Fair Labor Standards Act by adding Section 800.101.-Effective date of equal pay thereto a new subsection (d) as follows:
(a) Section 4 of the Equal Pay Act of 1963 pro(d) (1) No employer having employees subject to any provisions of this section shall discriminate, within any vides as follows with respect to the effective date establishment in which such employees are employed,
of its amendments to the Fair Labor Standards between employees on the basis of sex by paying wages
Act: to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite SEC. 4. The amendments made by this Act shall take sex in such establishment for equal work on jobs the effect upon the expiration of 1 year from the date of its performance of which requires equal skill, effort, and enactment: Provided, That in the case of employees corresponsibility, and which are performed under similar
ered by a bona fide collective bargaining agreement in working conditions, except where such payment is made effect at least 30 days prior to the date of enactment of pursuant to (1) a seniority system; (ii) a merit system; this Act, entered into by a labor organization (as defined (iii) a system which measures earnings by quantity or in section 6(d) (4) of the Fair Labor Standards Act of quality of production; or (iv) a differential based on any 1938, as amended), the amendments made by this Act other factor other than sex: Provided, That an employer shall take effect upon the termination of such collective who is paying a wage rate differential in violation of this bargaining agreement or upon the expiration of 2 years subsection shall not, in order to comply with the provi from the date of enactment of this Act, whichever shall sions of this subsection, reduce the wage rate of any
first occur. employee.
(b) Under the above provision, on and after (2) No labor organization, or its agents, representing
June 11, 1965, the equal pay provisions are effecemployees of an employer having employees subject to any provisions of this section shall cause or attempt to cause tive with respect to all employment subject to their such an employer to discriminate against an employee in terms. On and after June 11, 1964, these proviviolation of paragraph (1) of this subsection.
sions were applicable to most such employment. (3) For purposes of administration and enforcement,
However, their application was deferred as to emany amounts owing to any employee which have been withheld in violation of this subsection shall be deemed
ployees covered by bona fide collective bargaining to be unpaid minimum wages or unpaid overtime com agreements, which were in effect on May 11, 1963, pensation under this Act.
and which did not terminate until some date after (4) As used in this subsection, the term "labor orga June 11, 1964. As to employees covered by such nization" means any organization of any kind, or any
agreements the provisions became effective on the agency or employee representation committee or plan, in which employees participate and which exists for the pur
termination date of the agreement or on June 11, pose, in whole or in part, of dealing with employers con
1965, whichever was the earlier date.
APPLICATION OF PROVISIONS IN GENERAL
Section 800.102.-Application to employers.
The prohibition against discrimination in wages on account of sex contained in section 6(d)(1) of the Act (see sec. 800.100) is applicable to every employer having employees subject to a minimum
wage under the Act. The employer may not discriminate on the basis of sex against such employees in any establishment (see sec. 800.103) in which such employees are employed by him by paying them wages at rates lower than he pays employees
of the opposite sex employed in the same establishment for work subject to the equal pay standard—that is, where equal work is performed by such employees and by employees of the opposite sex on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. (See secs. 800.119–800.132.) The Act excepts from this general prohibition such differences between the wage rates for such work performed by men and women employed by the employer in the establishment as can be shown to be based on a factor or factors other than sex. (See secs. 800.140–800.151.) It is clear from the proviso included in section 6(d) (1) that where a wage rate differential in violation of the provision is paid, the violation cannot be corrected by reducing the wage rate of any employee. Section 800.103.—Application to establishments.
The prohibition against discrimination in wages on account of sex contained in section 6(d)(1) of the Act applies “within any establishment” in which employees who must be paid a minimum wage under section 6 are employed by an employer. The term "establishment” as used in section 6(d) (1) has the same meaning as it has in section 13(a) (2) and elsewhere in the Act. (See sec. 800.108.) ) It should be kept in mind, in determining an employer's obligations under the equal pay provisions, that "employer” and “establishment” as used in these and other provisions of the Act are not synonymous terms. An employer may have more than one establishment in which he employs employees within the meaning of the Act. In such cases, the legislative history makes clear that there shall be no comparison between wages paid to employees in different establishments.
Act speaks of the employment of employees in the establishment rather than of their engagement in work there. Also, the legislative history of the Equal Pay Act makes it clear that coverage under the equal pay provisions is equal to that provided by the other provisions of section 6 of the Fair Labor Standards Act, and that those employers and employees who are subject to the minimum wage provisions will be subject to the new provisions on equal pay. (See S. Rept. No. 176, 88th Cong., 1st sess., p. 2; H. Rept. No. 309, 88th Cong., 1st sess., p. 2.) Congress clearly rejected the concept that the equal pay provisions apply only to work performed inside a physical establishment. Otherwise, those employees, subject to section 6 of the Act, would be incongruously deprived of equal pay protection simply because their work is performed away from the physical premises of the establishment in which they are employed. On the other hand, it is clear from the language of the Act that in each distinct physical place of business where employees of an employer work (including, but not limited to, the employer's own establishments), the obligation of the employer to comply with the equal pay requirements must be determined separately with reference to those of his employees who are employed in that particular establishment. Accordingly, where there are a number of distinct physical places of business in which an employer's employees are employed, compliance with the equal pay provisions must be tested within each establishment by comparing the jobs in which employees are employed in that establishment and the wages paid for work on such jobs when performed by employees of opposite sexes. (31 F.R. 11720, Sept. 7, 1966, as amended at 32 F.R. 2379,
February 3, 1967) Section 800.105.- Employees not subject to pro
visions. An employee may be employed in an establishment by an employer subject to the equal pay provisions, and yet not be protected by these provisions. Unless such an employee is one to whom the minimum wage provisions apply, the Act does not afford protection from a discrimination in wages based on sex between such employee and an employee of the opposite sex. This is true both with respect to employees who are not covered under section 6 and with respect to employees to whom
Section 800.104.-Application to employees.
As has been seen, there must be compliance by the employer with the equal pay requirements within any establishment in which employees subject to the Act's minimum wage provisions are employed by him. The Act's concern with wage discrimination by an employer on account of sex to the detriment of his employees who are subject to the minimum wage provisions is not limited either by its language or by its legislative history to those employees whose work is performed on the premises of their employer's establishment. The
INTERPRETATIONS PART 800
section 6 cannot apply by reason of an express exemption in section 13(a). (See sec. 800.12.) More particularly, the equal pay standards have no application with respect to wages paid employees who are neither engaged in or in the production of goods for interstate commerce nor employed in an enterprise which is so engaged. Section 800.106.-Application to labor organiza
tions. Section 6(d) (2) of the Act prohibits a labor organization, representing employees of an employer having employees subject to the minimum wage provisions of section 6, from engaging in acts that cause or attempt to cause the employer to discriminate against an employee in violation of the equal pay provisions. Agents of the labor organization are also prohibited from doing so. Thus, such a labor organization and its agents must refrain from strike or picketing activities aimed at inducing an employer to institute or maintain a prohibited wage differential, and must not demand any terms or any interpretation of terms in a collective bargaining agreement with such an em
ployer which would require the latter to discriminate in the payment of wages contrary to the provisions of section 6(d)(1). Section 6(a)(2), together with the special provision in section 4 of the Equal Pay Act of 1963 allowing a deferred effective date for application of the equal pay provisions to employees covered by specified existing collective bargaining agreements (see sec. 800.101) are indicative of the legislative intent that in situations where wage rates are governed by collective bargaining agreements, unions representing the employees shall share with the employer the responsibility for ensuring that the wage rates required by such agreements will not cause the employer to make payments that are not in compliance with the equal pay provisions. Thus, where equal work is being performed within the meaning of the statute, a wage rate differential which exists between male and female employees cannot be justified on the ground that it is a result of negotiation by the union with the employer, for negotiation of such a discriminatory wage differential is prohibited under the terms of the equal pay amendment.
DEFINITIONS PERTINENT TO APPLICATION
Section 800.107.-"Employer”, "employee", cludes any individual employed by an employer" "employ" defined.
and "employ”, as used in the Act, is defined in secThe Act provides its own definitions of "em tion 3(g) to include "to suffer or permit to work”. ployer", "employee", and "employ", under which It should be noted, as explained in the interpreta"economic reality” rather than "technical con tive bulletin on joint employment, Part 791 of cepts" determines whether there is employment this chapter, that in appropriate circumstances two subject to its terms (Goldberg v. Whitaker House or more employers may be jointly responsible for Cooperative, 366 U.S. 28; United States v. Silk, compliance with the statutory requirements appli331 U.S. 704; Rutherford Food Corp. v. MoComb,
cable to employment of a particular employee. 331 U.S. 722). An "employer”, as defined in sec (32 F.R. 2379, February 3, 1967] tion 3(d) of the Act, "includes any person acting
Section 800.108.—Meaning of “establishment”. directly or indirectly in the interest of an employer
Although not expressly defined in the Act, the in relation to an employee but shall not include
term "establishment” has a well settled meaning in the United States or any State or political subdi
the application of the Act's provisions. It refers vision of a State (except with respect to employ
to a "distinct physical place of business” rather ees of a State, or a political subdivision thereof,
than to “an entire business or enterprise” which employed (a) in a hospital, institution, or school referred to in the last sentence of subsection (r) of
may include several separate places of business. this section, or (b) in the operation of a railway
This is consistent with the meaning of the term as or carrier referred to in such sentence) or any labor
it is normally used in business and in government, organization (other than when acting as an em
is judicially settled, and has been recognized in the ployer), or anyone acting in the capacity of officer Congress in the course of enactment of amendatory or agent of such labor organization”. An "em legislation (Phillips v. Walling, 324 U.S. 490; ployee" as defined in section 3(e) of the Act “in Mitchell v. Bekins Van & Storage Co., 352 U.S.