6 Sec. WORKWEEK APPLICATION OF EXEMPTION Sec. REQUIREMENTS FOR EXEMPTION-Continued 780.772 Employment in the particular workweek as test SUBPART A-INTRODUCTORY SOURCE: Sections 780.0 to 780.9 appear at 26 F.R. 10380, Nov. 3, 1961. Section 780.0 Purpose of interpretative bulletins in this part. It is the purpose of the interpretative bulletins in this part to provide an official statement of the views of the Department of Labor with respect to the application and meaning of the provisions of the Fair Labor Standrads Act of 1938, as amended, which exempt certain employees from the minimum wage or overtime pay requirements, or both, when employed in agriculture or in certain related activities or in certain operations with respect to agricultural or horticultural commodities. Section 780.1 General scope of the Act. The Fair Labor Standards is a Federal statute of general application which establishes minimum wage, overtime pay, and child labor requirements that apply as provided in the Act. These requirements are applicable, except where exemptions are provided, to employees in those workweeks when they are engaged in interstate or foreign commerce or in the production of goods for such commerce or are employed in enterprises so engaged within the meaning of definitions set forth in the Act. Employers having such employees are required to comply with the Act's provisions in this regard unless relieved therefrom by some exemption in the Act, and with specified recordkeeping 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 789.2 Exemptions from Act's requirements. The Act provides a number of specific exemptions from the general requirements described in section 780.1. 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, over 1 Added subsequent to revision. time pay, and child labor requirements. An employer who claims an exemption under the Act has the burden of showing that it applies (Walling v. General Industries Co., 330 U.S. 545; Mitchell v. Kentucky Finance Co., 359 U.S. 290). Conditions specified in the language of the Act are "explicit prerequisites to exemption” (Arnold v. Kanowsky, 361 U.S. 388). "The details with which the exemptions in this Act have been made preclude their enlargement by implication" and "no matter how broad the exemption, it is meant to apply only to" the specified activities (Addison v. Holly Hill, 322 U.S. 607; Maneja v. Waialua, 349 U.S. 254). Exemptions provided in the Act "are to be narrowly construed against the employer seeking to assert them" and their application limited to those who come "plainly and unmistakably within their terms and spirit" (Phillips v. Walling, 334 U.S. 490; Mitchell v. Kentucky Finance Co., 359 U.S. 290; Arnold v. Kanowsky, 361 U.S. 388). Section 780.3 Exemptions discussed in this part. The specific exemptions which the Act provides for employment in agriculture and in certain operations more or less closely connected with the agricultural industry are discussed in this Part 780. These exemptions differ substantially in their terms, scope, and methods of application. Each of them is therefore separately considered in a subpart of this part which, together with this Subpart A, constitutes the official interpretative bulletin of the Department of Labor with respect to that exemption. Exemptions from minimum wages and overtime pay and the subparts in which they are considered include the section 13 (a) (6) exemption (agriculture and irrigation) discussed in Subpart B of this part, the section 13 (a) (16) exemption (agriculture and livestock auction operations) discussed in Subpart C of this part, the section 13(a) (21) exemption (agricultural employees processing shade-grown tobacco) discussed in Subpart D, the section 13 (a) (22) exemption (fruit and vegetable harvest transportation) discussed in Subpart E of this part, the section 13 (a) (18) exemption (cotton ginning) discussed in Subpart F of this part, the section 13 (a) (17) exemption (country elevators) discussed in Subpart G of this part, and the section 13 (a) (10) exemption (operations on agricultural commodi ties in the "area of production") discussed in Subpart H of this part. An exemption in section 13(d) of the Act from the minimum wage, overtime pay, and child labor provisions for certain homeworkers making holly and evergreen wreaths is discussed in Subpart I of this part. Exemptions from only the overtime provisions under sections 7(c) (specified operations on agricultural commodities), 7(b) (3) (seasonal industries), and 13(b) (5) (outside buyers of certain commodities) are discussed in Subpart J of this part. Section 780.4 Matters not discussed in this part. The application of provisions of the Fair Labor Standards Act other than the exemptions referred to in section 780.3 is not considered in this Part 780. Interpretative bulletins published elsewhere in the Code of Federal Regulations deal with such subjects as the general coverage of the Act (Part 776 of this chapter) and of the child labor provisions (Part 1500 of this title, Subpart G of this part of which also discusses exemptions from child labor requirements), methods of payment of wages (Part 531, Subpart C of this chapter), computation and payment of overtime compensation (Part 778 of this chapter), and hours worked (Part 785 of this chapter). Regulations on recordkeeping are contained in Part 516 of this chapter and regulations defining exempt administrative, executive, and professional employees, and outside salesmen are contained in Part 541 of this chapter. Regulations and interpretations on other subjects concerned with the application of the Act are listed in the table of contents to this chapter. Copies of any of these documents may be obtained from any office of the Wage and Hour and Public Contracts Divisions. Section 780.5 Significance of official interpretations. The regulations in this part contain the official interpretations of the Department of Labor with respect to the application under described circumstances of the provisions of law which they discuss. 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 reexamination of an interpretation, that it is incorrect. Section 780.6 Basic support for interpretations. 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 bulletin are cited where it is believed they may be helpful. On matters which have not been determined by the courts, it is necessary for the Secretary of Labor and the Administrator to reach conclusions as to the meaning and the application of provisions of the law in order to carry out their responsibilities of administration and enforcement (Skidmore v. Swift, 323 U.S. 134). In order that these positions may be made known to persons who may be affected by them, official interpretations are issued by the Administrator on the advice of the Solicitor of Labor, as authorized by the Secretary (Reorg. Pl. 6 of 1950, 64 Stat. 1263; Gen. Ord. 45A, May 24, 1950; 15 F.R. 3290). As included in the regulations in this part, these interpretations are believed to express the intent of the law as reflected in its provisions and as contrued by the courts and evidenced by its legislative history. References to pertinent legislative history are made in this bulletin where it appears that they will contribute to a better understanding of the interpretations. Section 780.7 Reliance on interpretations. The interpretations of the law contained in this part are official interpretations which may be relied upon as provided in section 10 of the Portal-toPortal Act of 1947. In addition, the Supreme Court has recognized that such interpretations of this Act "provide a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it" and "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Further, as stated by the Court: "Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons." (Skidmore v. Swift, 323 U.S. 134.) Some of the interpretations in this part are interpretations of ex emption provisions as they appeared in the original Act before amendment in 1949 and 1961, which have remained unchanged because they are consistent with the amendments. These interpretations may be said to have Congressional sanction because "When Congress amended the Act in 1949 it provided that pre-1949 rulings and interpretations by the Administrator should remain in effect unless inconsistent with the statute as amended. 63 Stat. 920." (Mitchell v. Kentucky Finance Co., 359 U.S. 290; accord, Maneja v. Waialua, 349 U.S. 254.) made, con Section 780.8 Interpretations made, tinued, and superseded by this part. On and after publication of this Part 780 in the Federal Register, the interpretations contained therein shall be in effect and shall remain in effect until they are modified, rescinded or withdrawn. This part supersedes and replaces the interpretations previously published in the Federal Register and Code of Federal Regulations as Part 780 of this chapter. Prior opinions, rulings, and interpretations and prior enforcement policies which are not inconsistent with the interpretations in this part or with the Fair Labor Standards Act as amended by the Fair Labor Standards Amendments of 1961 are continued in effect; all other opinions, rulings, interpretations, and enforcement policies on the subjects discussed in the interpretations in this part are rescinded and withdrawn. The interpretations in this part provide statements of general principles applicable to the subjects discussed and illustrations of the application of these principles to situations that frequently arise. They do not and cannot refer specifically to every problem which may be met in the consideration of the exemptions discussed. The omission to discuss a particular problem in this part or in interpretations supplementing it should not be taken to indicate the adoption of any position by the Secretary of Labor or the Administrator with respect to such problem or to constitute an administrative interpretation or practice or enforcement policy. Questions on matters not fully covered by this bulletin may be addressed to the Administrator of the Wage and Hour and Public Contracts Divisions, United States Department of Labor, Washington 25, D.C., or to any Regional Office of the Divisions. |