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employment as seamen must be paid, unless exempted by some other provision, not less than one and one-half times their regular rates of pay for overtime, as shown in the schedule below.
891: 118 E. age of tion" ad see their
than $1.25 an hour beginning September 3, 1963 (29 U.S.C. 206(a)(1)), unless expressly exempted by some provision of the amended Act. Such an employee is also entitled to overtime pay for hours worked in excess of 40 in any workweek at a rate not less than one and onehalf times his regular rate of pay (29 U.S.C. 207(a) (1)), unless expressly exempt from overtime by some exemption such as section 13(b) (6). (Minimum wage rates in Puerto Rico, the Virgin Islands, and American Samoa are governed by special provisions of the Act (29 U.S.C. 206(a)(3); 206(c)). Information on these rates is available at any office of the Wage and
and Hour and Public Contracts Divisions.)
Sept. 3, 1961.. Sept. 3, 1963
Sept. 3, 1964..
on as as its "the - Act
$1 an hour.--- None required. No change After 44 hours in a
workweek. $1.15 an hour. After 42 hours in a
workweek. $1.25 an hour. After 40 hours in a
Sept. 3, 1965 1
1 Requirements identical to those for employees under "old" coverage. (Minimum wage rates for newly covered employees in Puerto Rico, the Virgin Islands, and American Samoa are set by wage order on recommendations of special industry committees (29 U.S.C. 206(a)(3); 206(c)(2), Information on these rates may be obtained at any office of the Wage and Hour and Public Contracts Divisions.)
THE STATUTORY PROVISIONS REGARDING SEAMEN
TES. Ex: aring Ito bly EIC
Section 783.24 THE SECTION 13(a) (14)
EXEMPTION. Section 13(a) (14) of the Fair Labor Standards Act exempts from the minimum wage and overtime pay requirements of the Act, but not from its child labor provisions, "any employee employed as a seaman on a vessel other than an American vessel".
cas 0; T le 7 1 e
Section 783.23 PAY STANDARDS FOR
"NEWLY COVERED” EMPLOYEES. There are some employees whose individual activities would not bring them within the minimum wage or overtime pay provisions of the Act as it was prior to the 1961 amendments, but who are brought within minimum wage or overtime coverage or both for the first time by the new "enterprise” coverage provisions or changes in exemptions, or both, which were enacted as part of the amendments and made effective September 3, 1961. Typical of such employees are those who, regardless of any engagement in commerce or in the production of goods for commerce, are employed as seamen and would therefore have been exempt from minimum wage as well as overtime pay requirements by virtue of section 13(a) (14) of the Act until the 1961 amendments if so employed during that period, but who by virtue of these amendments are exempt only from the overtime pay requirements on and after September 3, 1961, under section 13(b) (6) of the amended Act. These “newly covered” employees for whom no specific exemption has been retained or provided in the amendments must be paid not less than the minimum wages shown in the schedule below for hours worked, computed, in the case of employees employed as seamen, in accordance with the special provisions of section 6(b)(2) which are discussed in subsequent sections of this part. Any "newly covered” employees who are not exempted by section 13(b) (6) because of their
Section 783.25 THE SECTION 13(b) (6)
EXEMPTION. Section 13(b) (6) of the Act exempts from the overtime pay requirements of the Act, but not from its other requirements, “any employee employed as a seaman". Section 783.26 THE SECTION 6(b) (2)
MINIMUM WAGE REQUIREMENT. Section 6(b), with paragraph (2) thereof, requires the employer to pay to an employee, “if such employee is employed as a seaman on an American vessel, not less than the rate which will provide to the employee, for the period covered by the wage payment, wages equal to compensation at the hourly rate prescribed by paragraph (1) of this subsection for all hours during such period when he was actually on duty (including periods aboard ship when the employee was on watch or was, at the direction of a superior officer, performing work or stand
ing by, but not including off-duty periods several amendments were made to the Act (63 which are provided pursuant to the employ Stat. 910), this exemption was not changed ment agreement)." The "hourly rate pre except that it was renumbered section 13(a) scribed by” paragraph (1) of the subsection (14). In the 1961 Amendments (75 Stat. 65), is the minimum wage rate applicable according a like exemption was retained but it was limited to the schedule shown in $ 783.23.
to one employed as a seaman on a vessel other
than an American vessel (sec. 13(a) (14)); an Section 783.27 SCOPE OF THE PROVI.
overtime exemption was provided for all emSIONS REGARDING “SEAMEN”.
ployees employed as seamen (sec. 13(b) (6)), In accordance with the above provisions of and those employed as seamen on an American the Act as amended, an employee employed as a
vessel were brought within the minimum wage seaman is exempt only from its overtime pay provisions (sec. 6(b)(2)). provisions under the new sections 13(b) (6),
Section 783.29 ADOPTION OF THE EXunless the vessel on which he is employed is not
EMPTION IN THE ORIGINAL 1938 ACT. an American vessel. Section 13(a) (14), as amended continues the prior exemption, from
(a) The general pattern of the legislative minimum wages as well as overtime pay, for
history of the Act shows that Congress intended any employee employed as a seaman on a vessel
to exempt, as employees "employed as" seamen, other than an American vessel. Thus, to come
only workers performing water transportation within this latter exemption an employee now
services. The original bill considered by the must be "employed as" a "seaman" on a vessel
congressional committees contained no exempwithin the overtime exemption provided by
tion for seamen or other transportation workers. section 13(b) (6) an employee need only be "em
At the joint hearings before the Senate and
House Committees on Labor, representatives ployed as" a "seaman”. The minimum wage
of the principal labor organizations representrequirements of the Act, as provided in section 6(b) and paragraph (2) of that subsection
ing seamen and other transportation workers
testified orally and by writing that the peculiar apply if the employee is "employed as" a "sea
needs of their industry and the fact that they man" on an "American vessel". The meaning
were already under special governmental reguand scope of these key words, "employed as a
lation made it unwise to bring them within the seaman" and "American vessel” are discussed in
scope of the proposed legislation (see Joint subsequent sections of this part. Of course, if
Hearings before Senate Committee on Educaan employee is not "employed as” a “seaman”
tion and Labor and House Committee on Labor within the meaning of this term as used in the on S. 2475 and H.R. 7200, 75th Cong., 1st sess., Act, these exemptions and section 6(b)(2) pp. 545, 546, 547, 549, 1216, 1217). The comwould have no relevancy and his status under mittees evidently acquiesced in this view and the Act would depend, as in the case of any
amendments were accepted (81 Cong. Rec. other employee, upon the other facts of his em 7875) and subsequently adopted in the law, exployment. (S$ 783.8-783.20.)
empting employees employed as seamen (sec.
13(a) (3)), certain employees of motor carriers LEGISLATIVE HISTORY AND JUDICIAL Con (sec. 13(b) (1)), railroad employees (sec. 13(b) STRUCTION OF THE EXEMPTIONS
(2)), and employees of carriers by air (sec. Section 783.28 GENERAL LEGISLATIVE
13(a) (4), now sec. 13(b) (3)). HISTORY.
(b) That the exemption was intended to exAs originally enacted in 1938, section
empt employees employed as “seamen” in the
ordinary meaning of that word is evidenced 13(a) (3) of the Fair Labor Standards Act ex by the fact that the chief proponents for the empted from both the minimum wage and over seamen's exemption were the Sailors Union of time pay requirements “any employee employed the Pacific and the National Maritime Union. as a seaman" (52 Stat. 1050). In 1949 when The former wrote asking for an exemption for
"seamen" for the reason that they were already under the jurisdiction of the maritime Commission pursuant to the Merchant Marine Act of 1936 (Joint Hearings before the Committees on Labor on S. 2475 and H.R. 7200, 75th cong. 1st sess., pp. 1216, 1217). The representative of the latter union also asked that "seamen" be exempted for the same reason saying * “We feel that in a general interpretation of the whole bill that the way has been left open for the proposed Labor Standards Board to have jurisdiction over those classes of workers who are engaged in transportation. While this may not have an unfavorable effect upon the workers engaged in transportation by water, we feel that it may conflict with the laws now in effect regarding the jurisdiction of the government machinery now set up to handle these problems” (id. at p. 545). And he went on to testify, "What we would like is an interpretation of the bill which would provide a protective clause for the 'seamen'” (id. at p. 547).
(c) Consonant with this legislative history, the courts in interpreting the phrase “employee employed as a seaman” for the purpose of the Act have given it its commonly accepted meaning, namely, one who is aboard a vessel necessarily and primarily in aid of its navigation (Walling v. Bay State Dredging and Contracting Co., 149 F. 2d 346; Walling v. Haden, 153 F. 2d 196; Sternberg Dredging Co. v. Walling, 158 F.2d 678). In arriving at this conclusion, the courts recognized that the term "seaman" does not have a fixed and precise meaning but that its meaning is governed by the context in which it is used and the purpose of the statute in which it is found. In construing the Fair Labor Standards Act, as a remedial statute passed for the benefit of all workers engaged in commerce, unless exempted, the courts concluded that giving a liberal interpretation of the meaning of the term “seaman” as used in an exemptive provision of the Act would frustrate rather than accomplish the legislative purpose (Helena Glendale Ferry Co. v. Walling, 132, F. 2d 616; Walling v. Bay State Dredging and Contracting Co., supra; Sternberg Dredging Co. v. Walling, supra; Walling v. Haden, supra).
One of the steps Congress took in the 1961 Admendments to extend the monetary provisions of the Act to more workers was to limit the scope of the exemption which excluded all employees employed as seamen from application of the minimum wage and overtime provisions. This it did by extending the minimum wage provisions of the Act to one employed as a seaman on an American vessel (section 6(b) (2)), by adding to the language of section 13 (a) (14) to make the exemption applicable only to a seaman employed on a vessel other than an American vessel, and finally by the addition of a new exemption, section 13(b) (6), relieving employers of overtime pay requirements with respect to those employees employed as seamen who do not come within the scope of the amended section 13(a) (14). (H. Rep. No. 75, 87th Cong., 1st sess., pp. 33, 36; Sen. Rep. No. 145, 87th Cong., 1st sess., pp. 32, 50; Statement of the Managers on the Part of the House, H. (Conf.) Rep. No. 327, 87th Cong., 1st sess., p. 16.) In view of the retention in the 1961 amendments of the basic language of the original exemption, “employee employed as a seaman", the legislative history and prior judicial construction (see $ 783.29) of the scope and meaning of this phrase would seem controlling for purposes of the amended Act.
Who is "EMPLOYED AS A SEAMAN" Section 783.31 CRITERIA FOR EMPLOY.
MENT “AS A SEAMAN”. In accordance with the legislative history and authoritative decisions as discussed in SS 783.28 and 783.29, an employee will ordinarily be regarded as "employed as a seaman" if he perfoms, as master or subject to the authority, direction, and control of the master aboard a vessel, service which is rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial amount of work of a different character. This is true with respect to vessels navigating inland waters as well as ocean-going and coastal vessels (Sternberg Dredging Co. v. Walling, 158 F. 2d 678; Walling v. Haden, 153 F. 2d 196, certiorari denied
328 U.S. 866; Walling v. Great Lakes Dredge & Manhattan Lighterage Corp., 148 F. 2d 971),
of the vessel as a means of transportation, as to a seaman only when he is “employed as" for example services performed substantially such (Walling v. Haden, supra); it appears as an aid to the vessel in navigation. For this also from the language of sections 6(b)(2) and reason it would appear that employees making 13(a) (14) that they are not intended to apply repairs to vessels between navigation seasons to any employee who is not employed on a vessel. would not be "employed as” seamen during such
a period. (See Desper v. Starved Rock Ferry Section 783.32 “SEAMAN” INCLUDES
Co., 342 U.S. 187; but see Walling v. Keansburg
Steamboat Co., 162 F. 2d 405 in which the sea-
man exemption was allowed in the case of an crew such as sailors, engineers, radio operators, articled employee provided he also worked in firemen, pursers, surgeons, cooks, and stewards
the ensuing navigation period but not in the if, as is the usual case, their service is of the
case of unarticled employees who only worked type described in $ 783.31. In some cases it during the lay-up period.) For the same and may not be of that type, in which event the
other reasons, stevedores and longshoremen are special provisions relating to seamen will not be
not employed as seamen. (Knudson v. Lee & applicable (Sternberg Dredging Co. v. Walling,
Simmons, Inc., 163 F. 2d 95.) Stevedores or 158 F. 2d 678; Cuascut v. Standard Dredging
roustabouts traveling aboard a vessel from port Co., 94 F. Supp. 197; Woods Lumber Co. v.
to port whose principal duties require them to Tobin, 199 F. 2d 455). However, an employee load and unload the vessel in port would not be employed as a seaman does not lose his status
employed as seamen even though during the as such simply because, as an incident to such
voyage they may perform from time to time employment, he performs some work not con
certain services of the same type as those rennected with operation of the vessel as a means dered by other employees who would be reof transportation, such as assisting in the load
garded as seamen under the Act. ing or unloading of freight at the beginning or
Section 783.34 EMPLOYEES ABOARD end of a voyage, if the amount of such work
VESSELS WHO ARE NOT “SEAMEN”. is not substantial.
Concessionaires and their employees aboard
a vessel ordinarily do not perform their services TUALLY PERFORMED.
subject to the authority, direction, and control
of the master of the vessel, except incidentally, Whether an employee is "employed as a sea
and their services are ordinarily not rendered man”, within the meaning of the Act, depends
primarily as an aid in the operation of the vesupon the character of the work he actually per
sel as a means of transportation. As a rule, forms and not on what it is called or the place
therefore, they are not employed as seamen for where it is performed (Walling v. Haden, 153
purposes of the Act. Also, other employees F.2d 196; Cuascut v. Standard Dredging Corp., working aboard vessels, whose service is not 94 F. Supp. 197). Merely because one works
rendered primarily as an aid to the operation of aboard a vessel (Helena Glendale Ferry Co. v.
the vessel as a means of transportation are not Walling, 132 F. 2d 616; Walling v. Bay State
employed as seamen (Knudson v. Lee & SimDredging & Contracting Co., 149 F. 2d 346),
mons, Inc., 163 F. 2d 95; Walling v. Haden, or may be articled as a seaman (see Walling v.
153 F. 2d 196, certiorari denied 328 U.S. 866). Haden, supra), or performs some maritime
Thus, employees on floating equipment who are duties (Walling v. Bay State Dredging & Con engaged in the construction of docks, levees, tracting Co., 149 F. 2d 346; Anderson v. revetments, or other structures, and employees
engaged in dredging operations or in the dig safe and operational condition and who exercise ging or processing of sand, gravel, or other the authority of the master in his absence, inmaterials are not employed as seamen within cluding keeping the log, checking the navigathe meaning of the Act but are engaged in per tion equipment, assisting in the movement of
the vessel while in port, are employed as seamen forming essentially industrial or excavation work (Sternberg Dredging Co. v. Walling, 158 within the meaning of the exemptions. The F. 2d 678; Walling v. Haden, Supra; Walling same may be true of licensed relief engineers v. Bay State Dredging & Contracting Co., 149 employed under the same circumstances whose F. 2d 346; Walling v. Great Lakes Dredge & duty it is to maintain the ship’s auxiliary maDock Co., 149 F. 2d 9, certiorari denied 327 chinery in operation and repair (see Pratt v. U.S. 722). Thus, "captains" and "deck hands” Alaska Packers Assoc. (N.D. Calif.) 9 WH of launches whose dominant work was indus
Cases 61). trial activity performed as an integrated part
Section 783.36 BARGE TENDERS. of harbor dredging operations and not in furtherance of transportation have been held not
Barge tenders on non-self-propelled barges
who perform the normal duties of their occupato be employed as seamen within the meaning
tion, such as attending to the lines and anchors, of the Act (Cuascut v. Standard Dredging Corp., 94 F. Supp. 197).
putting out running and mooring lights, pump
ing out bilge water, and other similar activities Section 783.35 EMPLOYEES SERVING AS
necessary and usual to the navigation of barges, “WATCHMEN” ABOARD VESSELS IN
are considered to be employed as "seamen" for PORT.
the purposes of the Act unless they do a subVarious situations are presented with respect
stantial amount of "non-seaman's" work (Gale to employees rendering watchman or similar v. Union Bag & Paper Corp., 116 F. (20) 27 service aboard a vessel in port. Members of the (C.A. 5, 1940), cert. den. 313 U.S. 559 (1941)). crew, who render such services during a tem However, there are employees who, while emporary stay in port or during a brief lay-up for ployed on vessels such as barges and lighters, minor repairs, are still employed as "seamen”. are primarily or substantially engaged in perWhere the vessel is laid up for a considerable forming duties such as loading and unloading or period, members of the crew rendering watch custodial service which do not constitute service man or similar services aboard the vessel during performed primarily as an aid in the operation this period would not appear to be within the of these vessels as a means of transportation and special provisions relating to seamen because consequently are not employed as “seamen” their services are not rendered primarily as an (McCarthy v. Wright & Cobb Lighterage Co., aid in the operation of the vessel as a means of 163 F. (20) 92; Anderson v. Manhattan Lighttransportation. See Desper v. Starved Rock erage Corp., 148 F. (2d) 971, certiorari denied Ferry Co., 342 U.S. 187. Furthermore, em
326 U.S. 722; Woods Lumber Co. v. Tobin, 20 ployees who are furnished by independent con
Labor Cases 66,640 (W.D. Tenn., 1951), affd, tractors to perform watchman or similar serv 199 F. (20) 455). Whether an employee is on ices aboard a vessel while in port would not be board a vessel primarily to perform maritime employed as seamen regardless of the period of services as a seaman or loading and unloading time the vessel is in port, since such service is services typical of such shore-based personnel as not of the type described in $ 783.31. The same longshoremen is a question of fact and can be considerations would apply in the case of mem determined only after reviewing all the facts in bers of a temporary or skeleton crew hired the particular case. merely to maintain the vessel while in port so
Section 783.37 ENFORCEMENT POLICY that the regular crew may be granted shore leave. On the other hand, licensed relief offi
FOR NONSEAMAN’S WORK. cers engaged during relatively short stays in In the enforcement of the Act, an employee port whose duty it is to maintain the ship in will be regarded as "employed as a seaman"