which they buy for resale. Employees are not Section 780.183 Feed sales and other non exempt activities. In some situations, the hatchery also operates a feed store and furnishes feed to the growers. As in the case of the produce business operated by a hatchery, this is not an exempt activity and employees engaged therein, such as truck drivers hauling feed to growers, are not exempt. Office workers and other employees lose the exemption in any workweek in which their duties relate to both exempt and nonexempt activities. THE SECTION 13 (a) (6) IRRIGATION EXEMPTION Section 780.184 Exemption of employees employed in specified irrigation activities. In addition to exempting employees employed in agriculture, section 13 (a) (6) also exempts from the wage and hour provisions of the Act "any employee employed *** in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, or operated on a share-crop basis, and which are used exclusively for supply and storing of water for agricultural purposes". Section 780.185 Exemption is direct and does not mean activities are agriculture. The exemption provided in section 13 (a) (6) for irrigation activities is a direct exemption which depends for its application on its own terms and not on the meaning of "agriculture" as defined in section 3(f). This exemption was added by an amendment to section 13 (a) (6) in 1949 to alter the effect of the decision of the United States Supreme Court in Farmers Reservoir Co. v. McComb, 337 U.S. 755, so as to exclude the type of employees involved in that case from certain requirements of the Act. Congress chose to accomplish this result, not by expanding the definition of agriculture in section 3(f), but by adding a further exemption. In view of this approach, it can well be said that Congress agreed with the Supreme Court's holding that such workers are not employed in agriculture, but nevertheless wished to exclude them from the minimum wage and overtime requirements of the Act (Goldberg v. Crowley Ridge Ass'n., 295 F. 2d 7). Irrigation workers who are employed in any workweek exclusively by a farmer or on a farm in irrigation work which meets the requirement of performance as an incident to or in conjunction with the primary farming operations of such farmer or such farm, as previously explained, are exempt as employed in agriculture under sections 3(f) and 13 (a) (6). Where they are not so employed, they are not exempt as agricultural employees (Farmers Reservoir Co. v. McComb, supra), but are exempt only if their duties and the irrigation system on which they work come within the express language of section 13(a) (6) which refers to irrigation work. Where this is the case, it is not material whether or not any of the requirements for exemption of employees employed in agriculture, as previously discussed in this part, are met. Section 780.186 Exemption is from minimum wages and overtime only. It should be noted at the outset that this exemption applies only to the minimum wage and overtime provisions of the Act and does not affect the child labor, recordkeeping and other requirements of the Act. Section 780.187 System must be nonprofit or operated on a share-crop basis. The exemption does not apply to employees employed in the described operations on facilities of any irrigation system unless the ditches, canals, reservoirs, or waterways in connection with which their work is done meet the statutory requirement that they either be not owned or operated for profit, or be operated on a share-crop basis. The employer is paid on a share-crop basis when he receives, as his total compensation, a share of the crop of the farmers serviced. Section 780.188 Facilities of system must be used exclusively for agricultural purposes. Section 13(a) (6) requires for exemption of irrigation work that the ditches, canals, reservoirs, or waterways in connection with which the employee's work is done be "used exclusively for supply and storing of water for agricultural purposes". If a water supplier supplies water for other than “agricultural purposes", the exemption would not apply. For example, the exemption would not apply where a portion of its water is delivered by the supplier to a municipality to be used for general, domestic and commercial purposes. The fact that a small amount of the water furnished for use in his farming operations is in fact used for incidental domestic purposes by the farmer on the farm does not, however, require the conclusion that the water supplied was not exclusively "for agricultural purposes" within the meaning of the irrigation exemption in section 13(a) (6). Accordingly, if otherwise applicable, the exemption is not defeated merely because the water stored and supplied through the ditches, canals, reservoirs, or waterways of the irrigation system includes a small amount which is used for domestic purposes on the farms to which it is supplied. On the other hand, if the water supplier should maintain separate facilities for storing and supplying water for domestic use, it is clear that employees employed in connection with the maintenance or operation of such facilities would not be employed in activities to which the exemption applies. Water used for watering livestock raised by a farmer is "for agricultural purposes". Section 780.189 Employment "in connection with the operation or maintenance" is exempt. *** The irrigation exemption provided by section. 13(a) (6) applies to "any employee employed in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways" of an irrigation system which qualifies for the exemption. The employee, to be exempt, must be employed "in connection with the operation or maintenance" of the named facilities; other employees of the irrigation system, not employed in connection with the named activities, are not exempt. The exemption may apply to employees engaged in insect, rodent, and weed control along the canals and waterways of the irrigation system. SUBPART C-EMPLOYMENT IN AGRICULTURE AND LIVESTOCK AUCTION OPERATIONS UNDER THE SECTION 13(a) (16) EXEMPTION SOURCE: Sections 780.200 to 780.224 appear at 26 F.R. 10393, Nov. 3, 1961. INTRODUCTORY Section 780.200 Scope and significance of interpretative bulletin. Subpart A of this Part 780 and this Subpart C together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13 (a) (16) of the Fair Labor Standards Act of 1938, as amended. This section provides an exemption from the minimum wage and overtime pay provisions of the Act for certain employees who, in the same workweek, are employed by a farmer in agriculture and also in the farmer's livestock auction operations. As appears more fully in Subpart A of this part, interpretations in this bulletin with respect to provisions of the Act discussed are official interpretations upon which reliance may be placed and which will guide the Secretary of Labor and the Administrator in the performance of their duties under the Act. The general exemption provided in section 13 (a) (6) of the Act for employees employed in agriculture is not discussed in this subpart except in its relation to section 13 (a) (16). The meaning and application of the section 13(a) (6) exemption is fully considered in Subpart B of this Part 780. Section 780.201 Statutory provision. Section 13 (a) (16) of the Fair Labor Standards Act exempts from the minimum wage requirements of section 6 and from the overtime provisions of section 7: any employee with respect to his employment in agriculture by a farmer, notwithstanding other employment of such employee in connection with livestock auction operations in which such farmer is engaged as an adjunct to the raising of livestock, either on his own account or in conjunction with other farmers, if such employee (A) is primarily employed during his workweek in agriculture by such farmer, and (B) is paid for his employment in connection with such livestock auction operations at a wage rate not less than that prescribed by section 6(a) (1). Section 780.202 General explanatory statement. Ordinarily, as discussed in Subpart B of this Part 780, an employee who in the same workweek engages in work which is exempt as agriculture under sections 13 (a) (6) and 3(f) of the Act and also performs nonexempt work to which the Act applies is not exempt in that week. Employees of a farmer are not employed in work exempt as "agriculture" while engaged in livestock auction operations in which the livestock offered at auction includes livestock raised by other farmers (Mitchell v. Hunt, 263 F. 2d 913). However, under section 13(a) (16) an employee who is employed by a farmer in agriculture as well as in livestock auction operations in the same workweek will not lose the minimum wage exemption for those hours spent exclusively in agriculture, nor the overtime exemption for that workweek, if certain conditions are met. These conditions and their meaning and application are discussed in this subpart. REQUIREMENTS FOR EXEMPTION Section 780.203 What determines application of exemption. The application of the section 13 (a) (16) exemption depends largely upon the nature of the work performed by the individual employee for whom exemption is sought. The character of the employer's business also determine the application of the exemption. Whether an employee is exempt therefore depends upon his duties as well as the nature of the employer's activities. Some employees of the employer may be exempt in some weeks and others may not. Section 780.204 General requirements. The general requirements for exemption under section 13 (a) (16) are as follows: (a) Employment of the employee "primarily” in agriculture in the particular workweek. (b) This primary employment by a farmer. (c) Engagement by the farmer in raising livestock. (d) Engagement by the farmer in livestock auction operations "as an adjunct to" the raising of livestock. (e) Payment of the minimum wage for all hours spent in livestock auction work by the employee. These requirements will be separately discussed in the following sections of this subpart. Section 780.205 Employment in agriculture. One requirement for exemption is that the employee be employed in "agriculture”. “Agricul ture", as used in the Act, is defined in section 3(f) as follows: (f) "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15 (g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. An employee meets the tests of being employed in agriculture when he either engages in any one or more of the branches of farming listed in the first part of the above definition or performs, as an employee of a farmer or on a farm, practices incident to such farming operations as mentioned in the second part of the definition (Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755). The exemption applies to "any employee" of a farmer whose employment meets the tests for exemption. Accordingly, any employee of the farmer who is employed in "agriculture", including laborers, clerical, maintenance and custodial employees, harvesters, dairy workers and others may qualify for the exemption under section 13 (a) (16) if the other conditions of the exemption are met. Section 780.206 Interpretation of term "agriculture". Section 3(f) of the Act, which defines "agriculture", has been extensively interpreted by the Department of Labor and the courts. Subpart B of this Part 780 contains those interpretations which have full application in construing the term "agriculture" as used in the 13 (a) (16) exemption. Section 780.207 "Primarily employed" in agriculture. Not only must the employee be employed in agriculture, but he must be "primarily" so employed during the particular workweek or weeks in which the 13(a) (16) exemption is to be applied. The word "primarily" may be considered to mean chiefly or principally. (Agnew v. Board of Governors, 153 F. 2d 785.) This interpretation is consistent with the view, expressed by the sponsor of the exemption at the time of its adoption on the floor of the Senate (107 Cong. Rec. (daily ed., April 19, 1961) p. 5879), that the word means "most of his time." The Department of Labor will consider that an employee who spends more than one-half of his hours worked in the particular workweek in agriculture, as defined in the Act, is "primarily" employed in agriculture during that week. Section 780.208 "During his workweek". Section 13 (a) (16) specifically requires that the unit of time to be used in determining whether an employee is primarily employed in agriculture is "during his workweek". The employee's own workweek, and not that of any other person, is to be used in applying the exemption. The employee's employment must meet the "primarily" test in each workweek in which the exemption is applied to him. Section 780.209 Workweek unit in applying the exemption. The unit of time to be used in determining the application of the exemption to an employee is the workweek. (See Overnight Transportation Co. v. Missel, 316 U.S. 572.) A workweek is a fixed and regularly recurring interval of 7 consecutive 24hour periods. It may begin at any hour of any day set by the employer and need not coincide with the calendar week. Once the work week has been set it commences each succeeding week on the same day and at the same hour. Changing of the workweek for the purpose of escaping the requirements of the Act is not permitted. Section 780.210 Workweek exclusively in exempt work. An employee who engages exclusively in a workweek in duties which come within the exemption under section 13 (a) (16) and is paid in accordance with the requirements of that exemption, is exempt in that workweek from the minimum wage and overtime requirements of the Act. Section 780.211 Workweek exclusively in agriculture. In any workweek in which the employee works exclusively in agriculture, performing no duty in respect to livestock auction operations, his exemption for that week is determined by application of section 13 (a) (6) to his activities. (See Subpart B of this part.) Section 780.212 Employment by a "farmer". A further requirement for exemption is the expressed statutory one that the employee must be employed in agriculture by a "farmer". Employment by a non-farmer will not qualify an employee for the exemption. Section 780.213 "By such farmer". The employee's primary employment in agriculture during the exempt week is also required to be by "such farmer." The phrase "such farmer" refers to the particular farmer by whom the employee is employed in agriculture and who engages in the livestock auction operations as an adjunct to his raising of livestock. Even if an employee may spend more than half of his work time in a work week in agriculture, he would not be exempt if such employment in agriculture were engaged in for various persons so that less than the primary portion of his work week was performed in his employment in agriculture by such farmer. For example, an employee may work a 60-hour week and be employed in agriculture for 50 of those hours, of which 20 hours are worked in his employment by the farmer who is engaged in the livestock auction operations, the other 30 being performed for a neighboring farmer. Although this employee was primarily employed in agriculture during the workweek he is not exempt. His primary employment in agriculture was not by the farmer described in section 13(a) (16) as required. Section 780.214 Definition of a farmer. The Act does not define the term "farmer." Whether an employer is a "farmer" within the meaning of section 13(a) (16) must be determined by consideration of the particular facts, keeping in mind the purpose of the exemption. A full discussion of the meaning of the term "farmer" as used in the Act's definition of agriculture is contained in sections 780.139-780.142 of this part. Generally, as indicated in that discussion, a farmer under the Act is one who engages, as an occupation, in farming operations as a distinct activity for the purpose of producing a farm crop. A corporation of a farmers' cooperative may be a "farmer" if engaged in actual farming of the Section 780.215 Raising of livestock. Livestock auction operations are within the 13(a) (16) exemption only when they are conducted as an adjunct to the raising of livestock by the farmer. The farmer is required to engage in the raising of livestock as a prerequisite for the exemption of an employee employed in the operations described in section 13(a) (16). Engagement by the farmer in one or more of the other branches of farming will not meet this requirement. Section 780.216 Operations mcluded in raising livestock. Raising livestock includes such operations as the breeding, fattening, feeding and care of domestic animals ordinarily raised or used on farms. A fuller discussion of the meaning of raising livestock is contained in sections 780.128-780.131 of this part. Section 780.217 Adjunct livestock auction operations. The livestock auction operations referred to in section 13(a) (16) are those engaged in by the farmer "as an adjunct" to the raising of livestock. This phrase limits the relative extent to which the farmer may conduct livestock auctions and claim exemption under section 13(a)(16). To qualify under the exemption provision, the auction operations should be an established part of the farmer's raising of the livestock and subordinate to it. The auction operations should not be conducted on so large a scale as to predominate over the raising of livestock. The livestock auction should be adjunct to the farmer's raising of livestock not only when he engages in it on his own account, but also when he joins with other farmers to hold an auction. Section 780.218 "His own account"-"in conjunction with other farmers". Under the terms of section 13(a)(16), the farmer may operate a livestock auction solely for his own benefit or he may join with "other farmers" to auction livestock for their mutual benefit. (See section 780.214 with regard to the definition of "farmer".) Unless the auction is conducted by the farmer alone or with others who are "farmers" the exemption does not apply. Section 780.219 Work "in connection with" livestock auction operations. An employee whose agricultural employment meets the tests for exemption may engage in "other" employment "in connection with" his employer's livestock auction operations under the conditions stated in section 13(a) (16). The work which an employee may engage in under the phrase "in connection with" includes only those activities which are a necessary incident to conducting a livestock auction of the limited type permitted under the exemption. Such work as transporting the livestock and caring for it, custodial, maintenance, and clerical duties are included. Work which cannot be considered necessarily incident to the livestock auction is not exempt. Section 780.220 Minimum wage for livestock auction work. The application of the exemption is further determined by whether another condition has been met. That condition is that the employee, in the workweek in which he engages in livestock auction activities, must be paid at a wage rate not less than the minimum rate required by the Act for the time spent in livestock in livestock auction work. The exemption does not apply unless there is payment for all hours spent in livestock auction work at not less than the applicable minimum rate prescribed in the Act. EFFECT OF EXEMPTION Section 780.221 No minimum wage for agriculture in exempt week. In a workweek in which all the requirements for exemptions under section 13(a) (16) are met, the employee is exempt from the minimum wage requirements of the Act for all hours worked exclusively in agriculture. Section 780.222 No overtime wages in exempt week. In a workweek in which all the requirements of the section 13(a)(16) exemption are met, the employee is exempt from the overtime requirements of section 7 for that entire work week. |