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The nature of the employment coming within the (b) Consistent with the purpose of the Act to basic or general coverage of the Act should there apply the Federal standards "throughout the fore be clearly understood. The general coverage

farthest reaches of the channels of interstate comof the Act extends, and its requirements apply merce”, the courts have made it clear that the except as otherwise provided by a specific exemp employees "engaged in commerce" to whom covtion, to every employee who is "engaged in com erage is extended include every employee emmerce or in the production of goods for commerce" ployed in the channels of such commerce or in and every employee who is "employed in an enter activities so closely related to such commerce as to prise engaged in commerce or in the production be considered a part of it as a practical matter. of goods for commerce" or "by an establishment” Seo Walling v. Jacksonville Paper Co., 317 U.S. qualifying as such an enterprise, as specified and 564; Overstreet v. North Shore Corp., 318 U.S. defined in the statute. What employees are so en 125; Mitchell v. Volmer, 349 U.S. 427; Mitchell v. gaged or employed must be ascertained in the light Lublin, 358 U.S. 207; see also Borden Co. v. of the definitions and delimitations set forth in Borella, 325 U.S. 679; and see the discussion, with the statute, giving due regard to authoritative in other pertinent court decisions cited, in Part 776 terpretations by the courts and to the legislative of this chapter. Engaging “in commerce" inhistory of the Act, as amended. In sections 800.6 cludes activities connected therewith such as manto 800.12, the employment which comes within this agement and control of the various physical procbasic coverage is briefly outlined. For a more esses, together with the accompanying accounting comprehensive discussion and a detailed explana

and clerical activities. Thus, employees engaged tion of the applicable principles, reference should in interstate or foreign commerce will typically be made to the interpretations on general cov include, among others, employees in distributing erage contained in Part 776 of this chapter. industries such as wholesaling or retailing who

sell, transport, handle, or otherwise work on goods Section 800.6.-General coverage of employees "engaged in commerce".

moving in interstate or foreign commerce as well

as workers who order, receive, guard, pack, ship, (a) The minimum wage provisions of the Act or keep records of such goods; employees who have applied since 1938, and continue to apply

handle payroll or personnel functions for workers along with the new equal pay provisions, except

engaged in such activities; clerical and other as otherwise provided by specific exemptions in workers who regularly use the mails, telephone, or the Act, to employees "engaged in commerce".

telegraph for communication across State lines; Commerce" is broadly defined in section 3(b) of

and employees who regularly travel across State the Act. It includes both interstate and foreign

lines while working. For other illustrations see commerce and is not limited to transportation Part 776 of this chapter. across State lines, or to activity of a commercial character. All parts of the movement among the

Section 800.7.-General coverage of employees several States or between any State and any place

“engaged in * * * the production of goods outside thereof of persons or things, tangibles or

for commerce". intangibles, including communication of informa (a) The minimum wage provisions of the Act tion and intelligence constitute movement in "com also have applied since 1938, and continue to apply merce” within the statutory definition. This in along with the new equal pay provisions, except cludes those parts of any such activity which tako as otherwise provided by specific exemptions in the place wholly within a single State. In addition,

Act, to employees "engaged in * * * the producthe instrumentalities for carrying on such com tion of goods for commerce". The broad meaning merce are so inseparable from the commerce itself of "commerce" as defined in section 3(b) of the Act that employees working on such instrumentalities has been outlined in section 800.6. “Goods” is also within the borders of a single State are, by virtue comprehensively defined in section 3(i) of the Act, of the contribution made by their work to the

and includes "articles or subjects of commerce of movement of the commerce, "engaged in com any character, or any part or ingredient thereof" merce” within the meaning of the Act.

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ities constituting "production" of the goods for commerce are defined in section 3(j) of the Act. These are not limited to such work as manufacturing but include handling or otherwise working on goods intended for shipment out of the State either directly or indirectly or for use within the State to serve the needs of the instrumentalities or facilities by which interstate or foreign commerce is carried on. See United States v. Darby, 312 U.S. 100; Alstate Constr. Co. v. Durkin, 345 U.S. 13. Employees engaged in any closely related process or occupation directly essential to such production of any goods, whether employed by the producer or by an independent employer, are also engaged, by definition, in “production”. See section 800.8 and the detailed discussion in Part 776 of this chapter. Further, the courts have recognized that an enterprise producing goods for commerce does not accomplish the actual production of such goods solely with employees performing physical labor on them. Thus, in Borden v. Borella, 325 U.S. 679, it was held that employees engaged in the administration, planning, management, and control of the various physical processes together with the accompanying clerical and accounting activities are, from a productive standpoint and for purposes of the Act, "actually engaged in the production of goods for commerce just as much as are those who process and work on the tangible products” in the manufacturing plants or other producing facilities of the enterprise.

(b) Typically, but not exclusively, employees engaged in the production of goods for interstate or foreign commerce include those who work in manufacturing, processing, and distributing establishments, including wholesale and retail establishments, that "produce” (including handle or work on) goods for such commerce. This includes everyone employed in such establishments, or elsewhere in the enterprises by which they are operated, whose activities constitute “production” of such goods under the principles outlined in paragraph (a) of this section. Thus, employees who sell, process, load, pack, or otherwise handle or work on goods which are to be shipped or delivered outside the State either by their employer or by another firm, and either in the same form or as a part or ingredient of other goods, are engaged in the production of goods for commerce within the coverage of the Act. So also are the office, man

agement, sales, and shipping personnel, and maintenance, custodial, and protective employees who perform, as a part of the integrated effort for the production of the goods for commerce, services related to such production or to such goods or to the plant, equipment, or personnel by which the production is accomplished. Section 800.8.-“Closely related” and “directly

essential” activities. As previously noted in section 800.7 an employee is engaged in the production of goods for interstate or foreign commerce within the meaning of the general coverage provisions of the Act even if his work is not an actual and direct part of such production, so long as he is engaged in a process or occupation which is "closely related” and “directly essential” to it. This is true whether he is employed by the producer of the goods or by someone else who provides goods or services to the producer. See in this connection Kirschbaum v. Walling, 316 U.S. 517, and Mitchell v. Joyce Agency, 348 U.S. 945, affirming 110 F. Supp. 918. A full discussion of "closely related" and "directly essential” work is contained in Part 776 of this chapter. Typical of employees covered under these principles are bookkeepers, stenographers, clerks, accountants, and auditors and other office and white collar workers, and employees doing payroll, timekeeping, and time study work for the producer of goods; employees in the personnel, labor relations, safety and health, advertising, promotion, and public relations activities of the producing enterprise; work instructors for the producers; employees maintaining, servicing, repairing or improving the buildings, machinery, equipment, vehicles or other facilities used in the production of goods for commerce, and such custodial and protective employees as watchmen, guards, firemen, patrolmen, caretakers, stockroom workers and warehousemen; and transportation workers bringing supplies, materials, or equipment to the producer's premises, removing waste materials therefrom, or transporting materials or other goods, or performing such other transportation activities, as the needs of production may require. These examples are illustrative, rather than exhaustive, of the employees who are "engaged in the production of goods for commerce" by reason of performing activities closely related and directly essential to such production.

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Section 800.9.-What goods are considered as or in the production of goods for commerce” if, in produced for commerce.

its activities, some employees are so engaged, "inGoods (as defined in 3(i) of the Act) are "pro

cluding employees handling, selling, or otherwise duced for commerce" if they are “produced, manu

working on goods that have been moved in or profactured, mined, handled or in any other manner

duced for commerce by any person”.
worked on” in any State for sale, trade, transpor (32 F.R. 2378, February 3, 1967)
tation, transmission, shipment, or delivery, to any Section 800.11.--"Enterprise" coverage.
place outside thereof. Goods are produced for
commerce where the producer intends, hopes, ex-

The scope of the added coverage on an enter

prise basis, which was provided by amendments to pects, or has reason to believe that the goods or any

the Act, is determined with reference to the speunsegregated part of them will move (in the same or in an altered form or as a part or ingredient of

cial definitions of the term “enterprise” in section

3(r) of the Act and of the term "enterprise enother goods) in interstate or foreign commerce. If such movement of the goods in commerce can

gaged in commerce or in the production of goods

for commerce" under section 3(s). Under these reasonably be anticipated by the producer when the goods are produced, it makes no difference

enterprise coverage provisions, if an enterprise

or establishment is an "enterprise engaged in whether he himself or the person to whom the goods are transferred puts the goods in interstate

commerce or in the production of goods for com

merce" as defined and delimited in section 3(s) of or foreign commerce. The fact that goods do move in interstate or foreign commerce is strong

the Act, every employee employed in such enterevidence that the producer intended, hoped, ex

prise or by such establishment is within the covpected, or had reason to believe that they would so erage of the minimum wage and the equal pay move. Goods may also be produced "for com provisions, except as otherwise specifically promerce” where they are to be used within the State vided by the Act. “Enterprise" coverage is disand not transported in any form across State lines. cussed comprehensively elsewhere in this chapter. This is true where the use to which they are put is A detailed discussion of the statutory definition of one which serves the needs of the instrumentalities

"enterprise" and of enterprise coverage as it reor facilities by which interstate or foreign com lates to enterprises which have retail or service merce is carried on within the State. These prin

establishments and as it relates to gasoline service ciples are discussed comprehensively in Part 776

establishments is contained in Part 779 of this of this chapter.

chapter. Section 800.10.-Coverage is not based on

Section 800.12.-Exemptions from section 6 amount of covered activity.

provided by section 13. The act makes no distinction as to the percent

The equal pay provisions do not apply to emage, volume, or amount of activities of either the

ployees exempted from the provisions of section 6 employee or the employer which constitute en

under any provision of section 13(a) of the act. gaging in commerce or in the production of goods for commerce.

The following employees are among those excluded (Mabee v. White Plains Publishing Co., 327 U.S. 128; United States v. Darby,

if their employment fully satisfies all the statutory 312 U.S. 100.) Is explained more fully in Part

conditions for exemption : Bona fide executive, ad776 of this chapter, the law is settled that every

ministrative, and professional employees, includemployee whose activities in commerce or in the ing academie administrative personnel and production of goods for commerce, even though teachers in elementary and secondary schools, and small in amount, are regular and recurring, is con outside salesmen, as defined in regulations (see sidered "engaged in commerce or in the production Part 541 of this chapter); employees of certain reof goods for commerce". Also, under the defini tail or service establishments (see Part 779 of this tion in section 3(s) of the act, an enterprise de chapter); employees of certain amusement or recscribed in any of the four numbered clauses of the reational establishments (see Act, sec. 13(a) (3)); subsection is an enterprise "engaged in commerce employees of certain small newspapers (see Act,

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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 harvest workers paid piece rates (see Part 780 of this chapter). [32 F.R. 2379, February 3, 1967]

SUBPART B–THE EQUAL PAY PROVISIONS

THE STATUTORY PROVISIONS

Section 800.100.-Section 6(d) of the Act.

The Equal Pay Act of 1963 amended section 6 of the Fair Labor Standards Act by adding thereto a new subsection (d) as follows:

(d) (1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system ; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

(2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection.

(3) For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this Act.

(4) As used in this subsection, the term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers con

cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Section 800.101.-Effective date of equal pay

requirements. (a) Section 4 of the Equal Pay Act of 1963 provides as follows with respect to the effective date of its amendments to the Fair Labor Standards Act:

Sec. 4. The amendments made by this Act shall take effect upon the expiration of 1 year from the date of its enactment: Provided, That in the case of employees covered by a bona fide collective bargaining agreement in effect at least 30 days prior to the date of enactment of this Act, entered into by a labor organization (as defined in section 6(d) (4) of the Fair Labor Standards Act of 1938, as amended), the amendments made by this Act shall take effect upon the termination of such collective bargaining agreement or upon the expiration of 2 years from the date of enactment of this Act, whichever shall first occur.

(b) Under the above provision, on and after June 11, 1965, the equal pay provisions are effectíve with respect to all employment subject to their terms. On and after June 11, 1964, these provisions were applicable to most such employment. However, their application was deferred as to employees covered by bona fide collective bargaining agreements, which were in effect on May 11, 1963, and which did not terminate until some date after June 11, 1964. As to employees covered by such agreements the provisions became effective on the termination date of the agreement or on June 11, 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

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of the opposite sex employed in the same estab Act speaks of the employment of employees in the lishment for work subject to the equal pay stand establishment rather than of their engagement in ard--that is, where equal work is performed by work there. Also, the legislative history of the such employees and by employees of the opposite Equal Pay Act makes it clear that coverage under sex on jobs the performance of which requires the equal pay provisions is equal to that provided equal skill, effort, and responsibility, and which by the other provisions of section 6 of the Fair are performed under similar working conditions. Labor Standards Act, and that those employers (See secs. 800.119–800.132.) The Act excepts and employees who are subject to the minimum from this general prohibition such differences be wage provisions will be subject to the new protween the wage rates for such work performed by visions on equal pay. (See S. Rept. No. 176, 88th men and women employed by the employer in the Cong., 1st sess., p. 2; H. Rept. No. 309, 88th Cong., establishment as can be shown to be based on a 1st sess., p. 2.) Congress clearly rejected the confactor or factors other than sex. (See secs. 800. cept that the equal pay provisions apply only to 140–800.151.) It is clear from the proviso in work performed inside a physical establishment. cluded in section 6(d) (1) that where a wage rate Otherwise, those employees, subject to section 6 of differential in violation of the provision is paid,

the Act, would be incongruously deprived of equal the violation cannot be corrected by reducing the pay protection simply because their work is perwage rate of any employee.

formed away from the physical premises of the

establishment in which they are employed. On Section 800.103.-Application to establishments.

the other hand, it is clear from the language of The prohibition against discrimination in wages the Act that in each distinct physical place of busion account of sex contained in section 6(d) (1) of

ness where employees of an employer work (inthe Act applies "within any establishment” in cluding, but not limited to, the employer's own which employees who must be paid a minimum

establishments), the obligation of the employer wage under section 6 are employed by an employer. to comply with the equal pay requirements must The term "establishment" as used in section 6(d) be determined separately with reference to those of (1) has the same meaning as it has in section 13(a)

his employees who are employed in that particular (2) and elsewhere in the Act. (See sec. 800.108.) establishment. Accordingly, where there are a It should be kept in mind, in determining an em number of distinct physical places of business in ployer's obligations under the equal pay provisions, which an employer's employees are employed, comthat "employer" and "establishment” as used in

pliance with the equal pay provisions must be these and other provisions of the Act are not synon tested within each establishment by comparing the ymous terms. An employer may have more than jobs in which employees are employed in that one establishment in which he employs employees establishment and the wages paid for work on such within the meaning of the Act. In such cases, the

jobs when performed by employees of opposite legislative history makes clear that there shall be

sexes. no comparison between wages paid to employees

(31 F.R. 11720, Sept. 7, 1966, as amended at 32 F.R. 2379, in different establishments.

February 3, 1967)
Section 800.104.--Application to employees. Section 800.105.--Employees not subject to pro-
As has been seen, there must be compliance by

visions.
the employer with the equal pay requirements An employee may be employed in an establish-
within any establishment in which employees sub ment by an employer subject to the equal pay pro-
ject to the Act's minimum wage provisions are em visions, and yet not be protected by these provi-
ployed by him. The Act's concern with wage sions. Unless such an employee is one to whom the
discrimination by an employer on account of sex minimum wage provisions apply, the Act does not
to the detriment of his employees who are subject a fford protection from a discrimination in wages
to the minimum wage provisions is not limited based on sex between such employee and an em-
either by its language or by its legislative history ployee of the opposite sex. This is true both with
to those employees whose work is performed on the respect to employees who are not covered under
premises of their employer's establishment. The section 6 and with respect to employees to whom

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