COMBINATIONS OF EXEMPT AND NONEXEMPT WORK Section 780.223 Engagement in exempt and nonexempt work.

Where an employee in the same workweek performs work which is exempt under section 13(a) (16) and also engages in other work to which the Act applies and which is not exempt under this or any other section of the Act, he is not exempt for that week. (See Mitchell v. Hunt, 263 F. 2d 913; Abram v. San Joaquin Cotton Oil Co., 46 F. Supp. 969; McComb v. del Valle (D.P.R.), 15 Labor Cases 64,842; Walling v. Peacock Corp. (D. Minn.), 7 Labor Cases 61,945.)

Section 780.224 Work exempt under more than one section of the Act

Where an employee in a workweek performs some work which is exempt under one section of the Act and other work which is exempt under another section of the Act and does no nonexempt work covered by the Act, the exemptions may be

in combined. If the scope of such exemption is not the same, the exemption of lesser scope will be applicable for that workweek. For example, if part of an employee's work is exempt from both the minimum wage and overtime requirements and the remainder is exempt only from the overtime pay provisions, the employee is exempt that week from the overtime pay requirements but not from the minimum wage provisions. A case in point. would be an employee employed in agriculture for part of the workweek and in handling the livestock of his employer and other farmers at an auction bar for the remainder of the workweek. If any of the requirements of section 13 (a) (16) were not met, a combination of the section 13 (a) (6) "agriculture" exemption (from minimum wages and overtime) and the section 7(c) "livestock handling" exemption (from overtime only, limited to 14 workweeks in any calendar year) would exempt the employee for the workweek from the overtime, but not the minimum wage provisions of the Act (see Mitchell v. Hunt, 263 F. 2d 913).

SOURCE: Sections 780.300 to 780.326 appear at 26 F.R. 10395, Nov. 3, 1961.

INTRODUCTORY

Section 780.300 Scope and significance of interpretative bulletin.

Subpart A of this Part 780 and this Subpart D together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13(a) (21) 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 agricultural employees engaged in the processing, prior to stemming, of shade-grown tobacco for use as cigar wrapper tobacco. As appears more fully in Subpart A, 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

agriculture is not discussed in this subpart except in its relation to section 13 (a) (21). The meaning and application of the section 13 (a) (6) exemption are fully considered in Subpart B of this Part 780. Section 780.301 Statutory provision.

Section 13 (a) (21) of the Fair Labor Standards Act exempts from the minimum wage requirements of section 6 of the Act and from the overtime provisions of section 7:

any agricultural employee employed in the growing and harvesting of shade-grown tobacco who is engaged in the processing (including, but not limited to, drying, curing, fermenting, bulking, rebulking, sorting, grading, aging, and baling) of such tobacco, prior to the stemming process, for use as cigar wrapper tobacco. Section 780.302 Legislative history of exemption.

Section 13 (a) (21) was added to the Act by the Fair Labor Standards Amendments of 1961, effective September 3, 1961. The intent of the committee which inserted the provision in the amendments which were reported to the House (see H. Rep. No. 75, 87th Cong., 1st Sess., p. 29)

bacco which may be viewed "as a continuation of the agricultural process, occurring in the vicinity where the tobacco was grown". (H. Rep. 75, 87th Cong. 1st Sess. p. 26.) Thus, it appears that the term "such tobacco" has reference to the local crop of shade-grown tobacco, raised by other local growers as well as by the processor, and which is being processed as a continuation of the growing and harvesting of such crop in the vicinity.

AGRICULTURAL EMPLOYEES WHO MAY
QUALIFY FOR EXEMPTION

Section 780.308 Exemption limited to specified agricultural employees.

As indicated in section 780.304, an employee processing shade-grown tobacco qualifies for exemption under section 13 (a) (21) only if he is both an "agricultural employee" and employed as such "in the growing and harvesting" of shade-grown tobacco. It should be noted that section 13 (a) (21) is an exemption applicable to such an employee while he is engaged in the specified processing operations; his employment in growing and harvesting shade-grown tobacco is not included in this exemption but is a prerequisite to its application. Employment in such growing and harvesting operations would, however, be exempt from the minimum wage and overtime pay provisions as employment in agriculture under section 13 (a) (6) in any workweek spent exclusively by the employee in such work.

Section 780.309 Agriculture.

The definition of "agriculture", as contained in section 3(f) of the Act, is discussed in Subpart B of this Part 780. The principles there discussed should be referred to as guides to the meaning of the terms "agricultural employee" and "growing and harvesting" as used in section 13(a) (21). Section 780.310 "Any agricultural employee”. The section 13(a) (21) exemption applies to “any agricultural employee” who is employed in the specified activities. The term "any agricultural employee" includes not only agricultural employees of the tobacco grower but also such employees of other farmers or independent contractors. "Any agricultural employee" employed in the growing and harvesting of shade-grown tobacco will qualify for exemption if he engages

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in the specified processing operations. The use of the word "agricultural" before "employee" makes it apparent that separate consideration must be given to whether an employee is an "agricultural employee" and to whether he is employed in the specified "growing and harvesting" within the meaning of the Act.

Section 780.311 Meaning of "agricultural employee".

An "agricultural employee," for purposes of section 13(a) (21), may be defined as an employee employed in activities which are included in the definition of "agriculture" in section 3(f) of the Act (see section 780.103 of this part), and who is employed in these activities with sufficient regularity or continuity to characterize him as a person who engages in them as an occupation. Isolated or sporadic instances of engagement by an employee in activities defined as "agriculture" would not ordinarily establish that he is an "agricultural employee". His engagement in agriculture should be sufficiently substantial to demonstrate some dedication to agricultural work as a means of livelihood.

Section 780.312 "Employed in the growing and harvesting".

Section 13 (a) (21) exempts processing operations on shade-grown tobacco only when performed by agricultural employees "employed in the growing and harvesting" of such tobacco. The use of the term "and" in the phrase "growing and harvesting" may be in recognition of the fact that in the raising of shade-grown tobacco the two operations are typically intermingled; however, it is not considered that the word "and" would preclude a determination on the particular facts that an employee is qualified for the exemption if he is employed only in "growing" or only in "harvesting." Employment in work other than growing and harvesting of shade-grown tobacco will not satisfy the requirement that the employee be employed in growing and harvesting, even if such work is on shade-grown tobacco and constitutes "agriculture" as defined in section 3(f) of the Act. For example, delivery of the tobacco by an employee of the farmer to the receiving platform of the bulking plant would be a "delivery to market" included in "agriculture" when performed by the farmer as an incident to or in conjunction

with his farming operations (Mitchell v. Budd, 350 U.S. 473), but it would not be part of "growing and harvesting".

Section 780.313 What employment in growing

and harvesting is sufficient.

To qualify an agricultural employee for exemption while processing shade-grown tobacco, the employee must be one who may currently be described in the language of the exemption as an "agricultural employee employed in the growing and harvesting of shade-grown tobacco". He must be one of those who "were employed in the growing and harvesting of such tobacco" (H. Rept. No. 75, 87th Cong., 1st Sess., p. 29) and one whose processing work could be viewed as a "continuation of the agricultural process, occurring in the vicinity where the tobacco was grown". (Ibid p. 26.) This appears to require that such employment be in connection with the crop of shade-grown tobacco which is being processed; it appears to preclude an employee who has had no such employment in the current crop season from qualifying for this exemption even if in some past season he was employed in growing and harvesting such tobacco. Bona fide employment in growing and harvesting shade-grown tobacco would also appear to be necessary. An attempt to qualify an employee for the processing exemption by sending him to the fields for growing or harvesting work for a few hours or days would not establish the bona fide employment in growing and harvesting contemplated by the Act. It would not seem sufficient that an employee has been engaged in growing or harvesting operations only occasionally or casually or incidentally for a small fraction of his work time. (See Walling v. Haden, 153 F. 2d 196.) Employment for a significant period in the current crop season or on some regular recurring basis during this season would appear to be necessary before an agricultural employee could reasonably be described as one "employed in the growing and harvesting of shade-grown tobacco". The determination in a doubtful case will, therefore, require a careful examination and consideration of the particular facts.

Section 780.314 "Growing" and "harvesting".

The general meaning of "growing" and "harvesting" of agricultural commodities is explained in sections 780.126 and 780.127 of Subpart B of

this Part 780, where the meaning of these terms as used in the Act's definition of agriculture is fully discussed. As there indicated, these terms include the actual raising of the crop and the operations customarily performed in connection with the removal of the crops by the farmer from their growing position, but do not extend to operations subsequent to and unconnected with the actual process whereby the agricultural commodities are severed from their attachment to the soil. Thus, while transportation to a concentration point on the farm may be included, "harvesting" never extends to transportation or other operations off the farm. The "growing" of shade-grown tobacco is considered to include such work as preparing the soil, planting, irrigating, fertilizing, and other activities. This type of tobacco requires special cultivation and is grown in fields that are completely enclosed and covered with cheesecloth shade. The leaves of the plant are picked in stages, as they mature. The leaves are taken immediately to a tobacco barn, located on the farm, where they are strung on sticks and dried by heat. Before the drying process is completed, the leaves are allowed to absorb moisture. Then they are dried again. It is not until the end of this drying operation that the leaves are packed in boxes and taken from the farm to a bulking plant for further processing (see Mitchell v. Budd, 350 U.S. 473). Under the general principles stated above, "harvesting" of shade-grown tobacco is considered to include the removal of the tobacco leaves from the plant and moving the tobacco from the field to the drying barn on the farm, together with the performance of other work as a necessary part of such operations. Subsequent operations such as the drying of the tobacco in the barn on the farm and packing of the tobacco for transportation to the bulking plant are not included in "harvesting".

EXEMPT PROCESSING

cigar wrapper tobacco". It is only in workweeks when he is so engaged that section 13 (a) (21) will provide an exemption from the minimum wage and overtime provisions of the Act.

Section 780.316 "Prior to the stemming process".

The exemption provided by section 13(a) (21) applies only to employees whose processing operations on shadegrown tobacco are performed "prior to the stemming process". (See H. Rep. No. 75, 87th Cong. 1st Sess. p. 26). This means that an employee engaged in stemming, the removal of the midrib from the tobacco leaf (McComb v. Puerto Rico Tobacco Marketing Co-op. Ass'n., 80 F. Supp. 953, affirmed 181 F. 2d 697), or in any operations on the tobacco which are performed after stemming has begun will not come within the exemption. Stemming and all subsequent operations are nonexempt work.

Section 780.317 "For use as cigar wrapper tobacco".

The phrase "for use as cigar wrapper tobacco" limits the type of end product which may be produced by the exempt operations. As its name indicates, cigar wrapper tobacco is used as a cigar wrapper and is distinguished from other types of tobacco which serve other purposes such as filing, pipe, chewing and other kinds of tobacco. Normally, shadegrown tobacco is used only for cigar wrappers. However, if the tobacco is not being processed by the employer for such specific and limited use, the employee is not engaged in exempt processing operations.

Section 780.318 Exempt processing operations.

The processing operations under section 13(a) (21) include, but are not limited to, “drying, curing, fermenting, bulking, rebulking, sorting, grading, aging, and baling" of the shade-grown tobacco. As previously noted, these operations are exempt only if performed on shade-grown tobacco prior to the stemming process to prepare the tobacco for use as cigar wrapper tobacco. Some operations in the named categories may, as noted in section 780.314, be performed by a tobacco farmer or on a tobacco farm as an incident to or in conjunction with the growing and harvesting operations performed by such farmer or on such

farm, in which event the exemption for agriculture under section 13 (a) (6) may be applicable to the employees engaged in these operations. (See sections 780.139-780.157 of this part.) Where they are not so performed by the farmer or on the farm, however, the exemption provided by section 13(a) (21) will apply if all its conditions are met. Bulking and subsequent processing of shade-grown tobacco, which change and improve the leaf in many ways and turn it into an industrial product, are not normally performed by the farmer or on the farm. Such operations have been held to be more akin to manufacturing than to agriculture (Mitchell v. Budd, 350 U.S. 473, at 475, 481, 482). Section 780.319 General scope of exempt operations.

All operations normally performed in the processing of shade-grown tobacco for use as cigar wrapper tobacco, if performed prior to the stemming process and for such use, are included in the exemption. As a whole, this processing substantially changes the physical properties and chemical content of the tobacco, improves its color, increases its combustibility, and eliminates the rawness and harshness of the freshly cured leaf. In the process the leaves are piled in "bulks" of about 4,000 pounds each to undergo a "sweating" or "fermentation" process in which temperature and humidity are carefully controlled. Proper heat control includes, among other things, breaking up the bulk, redistributing the tobacco, and adding water. Proper fermentation or aging requires the bulk to be reconstructed several times. This bulking process may last from four to eight months. When the tobacco is properly dried, cured, fermented, and aged, it is moved to long tables where the leaves are individually graded and sorted, after which they are tied in bundles called "hands” of about 30 to 35 leaves each, which are then baled for shipment. Equipment required for the work may include a steam-heated plant, platforms, thermometers, bulk covers, baling boxes and presses, baling mats and packing, sorting, and grading tables. (See Mitchell v. Budd, 350 U.S. 473, 475.) Employees performing any part of this processing prior to the stemming process, including the operations named in section 13(a) (21). may come within the exemption if they are otherwise qualified and if the tobacco on which they