Page images
[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small]

ployees employed in canning of marine products at sea. It is an objective of this part to make available in one place, for the information of those who may be concerned with these and related provisions of the law, the official interpretations of such provisions by which the Department of Labor will be guided in carrying out its responsibilities under the Act. Section 784.1 General scope of the Act.

The Fair Labor Standards Act, as amended, is a Federal statute of general application which establishes minimum wage, overtime pay, and child labor requirements that apply as provided in the Act. Employers and employees in enterprises engaged in fishing and related activities, or in operations on aquatic products on shore, need to know how the Act applies to employment in these enterprises so that they may understand their rights and obligations under the law. All employees whose employment has the relationship to interstate or foreign commerce which the Act specifies are subject to the prescribed labor standards unless specifically exempted from them. Employers having such employees are required to comply with the Act's provisions in this regard and with specified record-keeping requirements contained in Part 516 of this chapter. The law authorizes the Department of Labor to investigate for compliance and, in the event of violations, to supervise the payment of unpaid minimum wages or unpaid overtime compensation owing to any employee. The law also provides for enforcement in the courts. Section 784.2 Matters discussed in this part.

This part discusses generally the provisions of the Act which govern its application to employers and employees in enterprises and establishments of the fisheries, sea food processing, and related industries. It discusses in some detail those exemption provisions of the Act in sections 13(a) (5) and 13(b) (4) which refer specifically to employees employed in described activities with respect to seafood and other forms of aquatic life. Section 784.3 Matters discussed in other in

terpretations. Interpretations having general application to others subject to the law, as well as to fishermen and sea food canners, processors, or distributors and their employees, have been issued on a number

of subjects of general interest. These will be found in other parts of this chapter. Reference should be made to them for guidance on matters which they discuss in detail, which this part does not undertake to do. They include Part 531 of this chapter, discussing methods of payment of wages: Part 778 of this chapter, discussing computation and payment of overtime compensation; Part 785 of this chapter, discussing the calculation of hours worked; Part 791 of this chapter, discussing joint employment relationships; and Part 776 of this chapter, discussing the general coverage provisions of the Act. Reference should also be made to Subpart G of Part 1500 of this title, which contains the official interpretations of the child labor provisions of the Act. Section 784.4 Significance of official interpre

tations. The regulations in this part contain the official interpretations of the Department of Labor pertaining to the exemptions provided in sections 13 (a)(5) and 13(b)(4) of the Fair Labor Standards Act of 1938, as amended. It is intended that the positions stated will serve as “a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it” (Skidmore v. Swift, 323 U.S. 134, 138). These interpretations indicate the construction of the law which the Secretary of Labor and the Administrator believe to be correct and which will guide them in the performance of their duties under the Act, unless and until they are otherwise directed by authoritative decisions of the courts or conclude upon the re-examination of an interpretation that it is incorrect. The interpretations contained herein may be relied upon in accordance with section 10 of the Portal-to-Portal Act (29 U.S.C. 251-262), so long as they remain effective and are not modified, amended, rescinded, or determined by judicial authority to be incorrect. Section 784.5 Basic support for interpreta.

tions. The ultimate decisions on interpretations of the Act are made by the courts (Mitchell v. Zachry, 362 U.S. 310; Kirschbaum v. Walling, 316 U.S. 517). Court decisions supporting interpretations contained in this part are cited where it is believed they may be helpful. On matters which have not been determined by the courts, it is necessary for

[blocks in formation]

the Secretary of Labor and the Administrator to as Part 784 of this chapter. Prior opinions, rulreach conclusions as to the meaning and the ap ings, and interpretations and prior enforcement plication of provisions of the law in order to carry policies which are not inconsistent with the interout their responsibilities of administration and en pretations in this part or with the Fair Labor forcement (Skidmore v. Swift, 323 U.S. 134). In Standards Act as amended by the Fair Labor order that these positions may be made known to Standards Amendments of 1961 are continued in persons who may be affected by them, official inter effect; all other opinions, rulings, interpretations, pretations are issued by the Administrator on the and enforcement policies on the subjects discussed advice of the Solicitor of Labor, as authorized by in the interpretations in this part are rescinded the Secretary (Reorganization Plan 6 of 1950, 64 and withdrawn. The interpretations in this part Stat. 1263; Gen. Ord. 45A, May 24, 1950; 15 F.R. provide statements of general principles ap3290). As included in the regulations in this part, plicable to the subjects discussed and illustrations these interpretations are believed to express the of the application of these principles to situations intent of the law as reflected in its provisions and that frequently arise. They do not and cannot as construed by the courts and evidenced by its refer specifically to every problem which may be legislative history. References to pertinent legis met by employers and employees in the applicalative history are made in this part where it ap tion of the Act. The omission to discuss a parpears that they will contribute to a better under

ticular problem in this part or in interpretations standing of the interpretations.

supplementing it should not be taken to indicate Section 784.6 Interpretations made, continued,

the adoption of any position by the Secretary of and superseded by this part.

Labor or the Administrator with respect to such

problem or to constitute an administrative interOn and after publication of this Part 784 in

pretation or practice or enforcement policy. the Federal Register, the interpretations con

Questions on matters not fully covered by this tained therein shall be in effect and shall remain in

bulletin may be addressed to the Administrator of effect until they are modified, rescinded or with

the Wage and Hour and Public Contracts Dividrawn. This part supersedes and replaces the

sions, United States Department of Labor, Washinterpretations previously published in the Fed

ington 25, D.C., or to any Regional Office of the eral Register and Code of Federal Regulations Divisions.


Section 784.7 Definition of terms used in the

Act. The meaning and application of the provisions of law discussed in this part depend in large degree on the definitions of terms used in these provisions. The Act itself defines some of these terms. Others have been defined and construed in decisions of the courts. In the following sections some of these basic definitions are set forth for ready reference in connection with the part's discussion of the various provisions in which they appear. These definitions and their application are further considered in other interpretative bulletins to which reference is made, and in the sections of this part where the particular provisions containing the defined terms are discussed.

Section 784.8 "Employer", "employee", and

"employ". The Act's major provisions impose certain requirements and prohibitions on every "employer” subject to their terms. The employment by an "employer” of an "employee" is, to the extent specified in the Act, made subject to minimum wage and overtime pay requirements and to prohibitions against the employment of oppressive child labor. The Act provides its own definitions of "employer", "employee", and "employ", under which "economic reality” rather than “technical concepts” determines whether there is employment subject to its terms (Goldberg v. Whitaker House Cooperative, 366 U.S. 28; United States v. Silk, 331 U.S. 704; Rutherford Food Corp. v. McComb,

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small]

The scope and application of this definition is discussed in Part 776 of this chapter and in sections 779.200_779.235 of this chapter. Section 784.11 "Establishment”.

As used in the Act (including the provision quoted below in section 784.12), the term "establishment”, which is not specially defined therein, refers to a “distinct physical places of business” rather than to "an entire business or enterprise" which may include several separate places of business. This is consistent with the meaning of the term as it is normally used in business and in government, is judicially settled, and has been recognized in the Congress in the course of enactment of amendatory legislation (Phillips v. Walling, 324 U.S. 490; Mitchell v. Bekins Van & Storage Co., 352 U.S. 1027; 95 Cong. Rec. 12505, 12579, 14877; H. Rept. No. 1455, 81st Cong., 1st Sess., p. 25). This is the meaning of the term as used in sections 3(r), 3(s), and 6(b) of the Act. Section 784.12 "Enterprise engaged in com

merce or in the production of goods for

commerce". Portions of the definition of "enterprise engaged in commerce or in the production of goods for commerce" (Act, section 3(s)) which may in some situations determine the application of provisions of the Act to employees employed by employers engaged in the procurement, processing, or distribution of aquatic products are as follows:

(s) "Enterprise engaged in commerce or in the production of goods for commerce" means any of the following in the activities of which 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 :

co indicat

[blocks in formation]

331 U.S. 722). An "employer”, as defined in section 3(d) of the Act, “includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization”. An "employee", as defined in section 3(e) of the Act, "includes any individual employed by an employer", and "employ", as used in the Act, is defined in section 3(g) to include “to suffer or permit to work”. It should be noted, as explained in Part 791 of this chapter, dealing with joint employment, that in appropriate circumstances two or more employers may be jointly responsible for compliance with the statutory requirements applicable to employment of a particular employee. It should also be noted that "employer”, “enterprise”, and “establishment" are not synonymous terms, as used in the Act. An employer may have an enterprise with more than one establishment, or he may have more than one enterprise, in which he employs employees within the meaning of the Act. Also, there may be different employers who employ employees in a particular establishment or enterprise. Section 784.9 "Person".

As used in the Act (including the definition of "enterprise" set forth below in section 784.10), “person” is defined as meaning "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons” (Act, section 3(a)). Section 784.10 "Enterprise".

The term "enterprise" which may, in some situations, be pertinent in determining coverage of this Act to employees employed by employers engaged in the procurement, processing, or distribution of aquatic products, is defined in section 3(r) of the Act. Section 3(r) states:

Enterprise means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor

its Din

e of


in 1



(3) any establishment of any such enterprise * * * which has employees engaged in commerce or in the production of goods for commerce if the annual gross volume of sales of such enterprise is not less than $1,000,000.

[ocr errors][merged small][ocr errors][merged small]

Provided, That an establishment shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce, or a part of an enterprise engaged in commerce or in the production of goods for commerce, and the sales of such establishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this subsection, if the only employees of such establishment are the owner thereof or persons standing in the relationship of parent, spouse, or child of such owner.

[ocr errors][ocr errors]

The application of this definition is considered Part 776 of this chapter, dealing with the general in Part 776 of this chapter.

coverage of the Act, contains a detailed discussion Section 784.13 “Commerce".

of the application of this definition and what is "Commerce" as used in the Act includes inter

included in it. state and foreign commerce.

It is defined in Section 784.16 “State". section 3(b) of the Act to mean “trade, commerce,

As used in the Act, "State" means "any State of transportation, transmission, or communication the United States or the District of Columbia or among the several States or between any State and any Territory or possession of the United States" any place outside thereof." (For the definition (Act, section 3(c)). The application of this defof "State", see section 784.16.) The application inition in determining questions of coverage under of this definition and the kinds of activities which the Act's definition of "commerce" and "produced” it includes are discussed at length in Part 776 of

(see sections 784.13, 784.14) is discussed in Part this chapter dealing with the general coverage


776 of this chapter, dealing with general coverage. the Act.

Section 784.17 “Regular rate”. Section 781.14 “Production".

As explained in Part 778 of this chapter, dealing To understand the meaning of "production” of with overtime compensation, employees subject to

the overtime pay provisions of the Act must gengoods for commerce as used in the Act it is necessary to refer to the definition in section 3(i)

erally receive for their overtime work in any

workweek as provided in the Act not less than one of the term "produced”. A detailed discussion of

and one-half times their regular rates of pay. Secthe application of the term as defined is contained in Part 776 of this chapter, dealing with the gen tion 7(d) of the Act defines the term "regular

rate" "to include all remuneration for employeral coverage of the Act. Section 3(j) provides

ment paid to, or on behalf of, the employee" except that "produced” as used in the Act “means produced, manufactured, mined, handled, or in any certain payments which are expressly described in

and excluded by the statutory definition. This other manner worked on in any State; and for the purposes of this Act an employee shall be deemed

definition, which is discussed at length in Part

778 of this chapter, determines the regular rate to have been engaged in the production of goods


which time and one-half overtime compensaif such employee was employed in producing, man

tion must be computed under section 7(a) of the ufacturing, mining, handling, transporting, or in

Act for employees within its general coverage who any other manner working on such goods, or in any

are not exempt from the overtime provisions under closely related process or occupation directly es

either of the fishery and seafood exemptions prosential to the production thereof, in any State.”

vided by sections 13(a) (5) and 13(b)(4) or (For the definition of "State” see section 784.16.)

under some other exemption contained in the Act. Section 781.15 “Goods".

It should be noted that if such an employee is not The definition in section 3(i) of the Act states

himself engaged in commerce or in the production that "goods”, as used in the Act, means "goods (in

of goods for commerce as defined by the Act and cluding ships and marine equipment), wares, prod in the courts, and is within the Act's coverage ucts, commodities, merchandise, or articles or sub

only by reason of his employment in an enterprise jects of com crce of any character, or any part engaged in commerce or in the production of goods or ingredient thereof, but does not include goods

for commerce, under the amendments to the Act after their delivery into the actual physical pos effective on September 3, 1961, there is no obliga

tion to pay overtime to him until September 3, session of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof." 1963, as explained below in section 784.25.

general CUSSION shat


[merged small][ocr errors][merged small][merged small][ocr errors]

Section 784.18 Basic coverage in general.

Except as otherwise provided in specific exemptions, the minimum wage, overtime pay, and child labor standards of the Act are generally applicable to employees who engage in specified activities concerned with interstate or foreign commerce. The employment of oppressive child labor in or about establishments producing goods for such commerce is also restricted by the Act. Beginning on September 3, 1961, the monetary and child labor standards of the Act are also generally applicable to other employees, not specifically exempted, who are employed in specified enterprises engaged in such commerce or in the production of goods for such commerce. The monetary standards applicable to all the foregoing employees, covered under the provisions discussed below in sections 784.19 and 784.20, are explained subsequently in sections 784.23 to 784.25 of this Subpart A. The employer must observe these monetary standards with respect to all such employees in his employ except those who may be denied one or both of these benefits by virtue of some specific exemption provision of the Act, such as section 13(a) (5) or 13(b) (4). It should be noted that enterprises having employees subject to these exemptions may also have other employees who may be exempt under section 13(a) (1) of the Act, subject to conditions specified in regulations, as employees employed in a bona fide executive, administrative, or professional capacity, or in the capacity of outside salesman. The regulations governing these exemptions are set forth and explained in Part 541 of this chapter. Section 784.19 Commerce activities of em

ployees. The Fair Labor Standards Act has applied since 1938 to all employees, not specifically exempted, who are engaged (a) in interstate or foreign commerce or (b) in the production of goods for such commerce, which is defined to include any closely related process or occupation directly essential to such production (29 U.S.C. 206(a), 207(a); and see sections 784.13 to 784.16 for definitions governing the scope of this coverage). The Act as amended in 1961 continues this coverage. In general, employees of businesses concerned with fisheries and with operations on sea food and other

aquatic products are engaged in interstate or foreign commerce, or in the production of goods for such commerce, as defined in the Act, and are subject to the Act's provisions except as otherwise provided in sections 13(a) (5) and 13(b) (4) or other express exemptions. A detailed discussion of the activities in commerce or in the production of goods for commerce which will bring an employee under the Act is contained in Part 776 of this chapter, dealing with general coverage. Section 784.20 Commerce activities of enter

prise in which employee is employed. Under amendments to the Fair Labor Standards Act effective September 3, 1961 (Pub. Law 87-30, 75 Stat. 65), employees not covered by reason of their personal engagement in interstate commerce activities, as explained in section 784.19, are nevertheless brought within the coverage of the Act if they are employed in an enterprise which is defined in section 3(s) of the Act as an enterprise engaged in commerce or in the production of goods for commerce, or by an establishment described in section 3(s) (3) of the Act (see section 784.12). Such employees, if not exempt from minimum wages and overtime pay under section 13(a) (5) or exempt from overtime pay under section 13(b) (4), will have to be paid in accordance with these monetary standards of the Act unless expressly exempt under some other provision. This would generally be true of employees employed in enterprises and by establishments engaged in the procurement, processing, marketing or distribution of seafood and other aquatic products, where the enterprise has an annual gross sales volume of $1,000,000 or more. Enterprise coverage is more fully discussed in Part 776 of this chapter, dealing with general coverage. Section 784.21 Exemptions from the Act's pro

visions. The Act provides a number of specific exemptions from the general requirements previously described. Some are exemptions from the overtime provisions only. Others are from the child labor provisions only. Several are exemptions from both the minimum wage and the overtime requirements of the Act. Finally, there are some exemptions from all three-minimum wage, overtime pay, and child labor requirements. An

[ocr errors]

677048 0 - 63 - 2

« PreviousContinue »