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 691-586 0-63-2 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 4 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.) Section 780.8 Interpretations made, continued, 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. Section 780.9 Related exemptions are interpreted together. The interpretations contained in the several subparts of this Part 780 consider separately a number of exemptions which affect employees who perform activities in or connected with agriculture and its products. These exemptions deal with related subject matter and varying degrees of relationships between them were the subject of consideration in Congress before their enactment. Together they constitute an expression in some detail of existing Federal policy on the lines to be drawn in the industries connected with agriculture and agricultural products between those employees to whom the pay provisions of the Act are to be applied and those whose exclusion in whole or in part from the Act's requirements has been deemed justified. The courts have indicated that these exemptions, because of their relationship to one another, should be construed together insofar as possible so that they form a consistent whole. Consideration of the language and history of a related exemption or exemptions is helpful in ascertaining the intended scope and application of an exemption whose effect might otherwise not be clear (Addison v. Holly Hill, 322 U.S. 607; Maneja v. Waialua, 349 U.S. 254; Bowie v. Gonzales (C.A. 1), 117 F. 2d 11). In the interpretations of the several exemptions discussed in the various subparts of this Part 780, effect has been given to these principles and each exemption has been considered in its relation to others in the group as well as to the combined effect of the group as a whole. SUBPART B-EMPLOYMENT IN AGRICULTURE OR IRRIGATION EXEMPTED FROM MINIMUM WAGE AND OVERTIME PAY REQUIREMENTS UNDER SECTION 13(a)(6) SOURCE: Sections 780.100 to 780.189 appear at 26 F.R. 10381, Nov. 3, 1961. INTRODUCTORY Section 780.100 Scope and significance of interpretative bulletin. Subpart A of this Part 780 and this Subpart B together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of sections 3 (f) and 13(a) (6) of the Fair Labor Standards Act of 1938, as amended. Section 3 (f) defines "agriculture" as the term is used in the Act. Section 13 (a) (6) provides exemption from the minimum wage and overtime pay provisions of the Act for employees employed in "agriculture", as so defined. It also provides a similar exemption for employees employed in connection with certain irrigation operations. As appears more fully in subpart A of this Part 780, interpretations in this bulletin with. respect to the 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. Section 780.101 Matters discussed in this and other subparts. Those principles and rules which govern the interpretation of the meaning and application of the Act's definition of "agriculture" in section 3 (f) and of the terms used in it are set forth in this Subpart B. Included is a discussion of that portion of section 3 (f) which refers to forestry or lumbering operations. Also included is a discussion of the application of the definition in section 3(f) to the employees of farmers' cooperative associations. Although the application to the exemption provided by section 13 (a) (6) of the general principles and rules for interpretation of the definition is fully discussed, reference must be made to other subparts of this Part 780 for their particular application in the context of other exemptions from the pay provisions of the Act which are related to agriculture and products of agriculture. As noted in those subparts, the official interpretations of section 3 (f) of the Act and the terms which appear in it are to be taken into consideration in determining the meaning intended by the use of like terms in particular related exemptions which are provided by the Act. Section 780.102 Relation of discussion to child labor provisions. As indicated, this subpart deals with sections 3(f) and 13(a) (6) of the Act. To the extent that the term "agriculture" as defined in section 3 (f) is involved in the section 13 (c) child labor exemption, the discussion contained in this subpart is applicable. The meaning and scope of the child labor coverage and exemption provisions are discussed in Subpart G of Part 4 of this title. STATUTORY PROVISIONS Section 780.103 "Agriculture" as defined by the Act. Section 3(f) of the Act defines "agriculture" as follows: "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, furbearing 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. Section 780.104 Statutory exemptions in sections 13(a)(6) and 13(c). (a) Section 13(a) (6) of the Act exempts from the minimum wage requirements of section 6 and from the overtime pay requirements of section 7: any employee employed in agriculture or 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. (b) Section 13(c) exempts from the child labor requirements of section 12: any employee employed in agriculture outside of school hours for the school district where such employee is living while he is so employed. See section 4.123 of Subpart G of Part 4 of this PRINCIPLES FOR APPLYING THE SECTION Section 780.105 The general guides for apply. Like other exemptions provided by the Act, the section 13 (a) (6) exemption is narrowly construed (Phillips, Inc. v. Walling, 334 U.S. 490; Bowie v. Gonzalez, 117 F. 2d 11; Calaf v. Gonzalez, 127 F. 2d 934; Fleming v. Hawkeye Pearl Button Co., 113 F.2d 52; Fleming v. Swift & Co., 41 F. Supp, 825; Miller Hatcheries v. Boyer, 131 F. 2d 283; Walling v. Friend, 156 F. 2d 429; see also section 780.2 of Subpart A of this Part 780). An employer who claims the exemption has the burden of showing that it applies. (See section 780.2.) The section 13(a) (6) exemption for employment in agriculture is intended to cover all agriculture, including "extraordinary methods" of agriculture as well as the more conventional ones and large operators as well as small ones. Nevertheless, it was meant to apply only to agriculture. It does not extend to processes that are more akin to manufacturing than to agriculture. Practices performed off the farm by nonfarmers are not within the exemption, except for the irrigation activities specifically described in section 13(a) (6). Practices performed by a farmer do not come within the exemption for agrculture if they are neither a part of farming nor performed by him as an incident to or in conjunction with his own farming operations. These principles have been well established by the courts in such cases as Mitchell v. Budd, 350 U.S. 473; Maneja v. Waialua, 349 U.S. 254; Farmers Reservoir Co. v. McComb, 337 U.S. 755; Addison v. Holly Hill Fruit Products, 322 U.S. 607; Calaf v. Gonzalez, 127 F. 2d 934; Chapman v. Durkin, 214 F.2d 360; certiorari denied 348 U.S. 897; Fort Mason Fruit Co. v. Durkin, 214 F.2d 363, certiorari denied, 348 U.S. 897; McComb v. Puerto Rico Tobacco Marketing Co-op. Ass'n. 80 F. Supp. 953, 181 F. 2d 697. When the Congress, in the 1961 amendments, provided special exemptions for some activities which had been held not to be included in the exemption for agriculture (see Subparts D and E of this Part 780), it was made very clear that no implication of disagreement with "the principles and tests governing the application of the present agricultural exemption as enunciated by the courts" was intended (Statement of the Managers on the Part of the House, Conference Report, H. Rep. No. 327, 87th Cong. 1st Sess., p. 18). Accordingly, an employee is considered an exempt agricultural or irrigation employee if, but only if, his work falls clearly within the specific language of section 3 (f) or section 13 (a) (6). Section 780.106 Employee basis of exemption under section 13(a)(6). Section 13 (a) (6) exempts "any employee employed in ***" It is clear from this language that it is the activities of the employee rather than those of his employer which ultimately determine the application of the exemption. Thus the exemption may not apply to some employees of an employer engaged almost exclusively in activities within the exemption, and it may apply to some employees of an employer engaged almost exclusively in other activities. But the burden of effecting segregation between exempt and nonexempt work as between different groups of employees is upon the employer. Section 780.107 Activities of the employer considered in some situations. Although the activities of the individual employee, as distinguished from those of his employer, constitute the ultimate test for applying the exemption, it is necessary in some instances to examine the activities of the employer. For example, in resolving the status of the employees of an irrigation company for purposes of the agriculture exemption, the United States Supreme Court found it necessary to consider the nature of the employer's activities (Farmers Reservoir Co. v. McComb, 337 U.S. 755). Section 780.108 Workweek standard under 13(a)(6). The workweek is the unit of time to be taken as the standard in determining the applicability of section 13 (a) (6). An employee's workweek is a fixed and regularly recurring period of 168 hours-seven consecutive 24-hour periods. It need not coincide with the calendar week. If in any workweek an employee does only exempt work, he is exempt from the wage and hour provisions of the Act during that work week, irrespective of the nature of his work in any other workweek or workweeks. An employee may thus be exempt in one workweek and not in the next. But the burden of effecting segregation between exempt and nonexempt work as between particular workweeks is upon the employer. Section 780.109 Exempt and noncovered work during a workweek under section 13(a)(6). The wage and hours requirements of the Act do not apply to an employee during any workweek in which a portion of his activities fall within section 13(a) (6) if all of the remainder of his activities are not covered by the Act. Section 780.110 Exempt and nonexempt work during the same workweek. Where an employee in the same workweek performs work which is exempt under this section 13(a) (6) and also engages in work to which the Act applies, not exempt under this or any other section of the Act, he is not exempt that week, and the wage and hour requirements of the Act are applicable (see Mitchell v. Hunt, 263 F. 2d 913; Mitchell v. Maxfield, 12 WH Cases 792 (S.D. Ohio), 29 Labor Cases 69, 781; Jordan v. Stark Bros. Nurseries, 45 F. Supp. 769; McComb v. Puerto Rico Tobacco Marketing Co-op Ass'n, 80 F. Supp. 953, affirmed 181 F. 2d 697; Walling v. Peacock Corp., 58 F. Supp. 880-883). Section 780.111 Work exempt under another section of the Act. The combination ("tacking") of exempt work under section 13(a) (6) with exempt work under another section is permitted. The wage and hour requirements are not considered applicable to an employee who does work within section 13(a) (6) for only part of a workweek if all of the covered. work done by him during the remainder of the workweek is within one or more equivalent exemptions under other provisions of the Act. If the scope of such exemptions is not the same, however, the exemption applicable to the employee is equivalent to that provided by whichever exemption provision is more limited in scope. For instance, an employee who devotes part of a workweek to work within section 13 (a) (6) and the remainder to work exempt under section 7(c) must receive the minimum wage but is not required to be paid time and one-half for his overtime during that week. Each activity is tested separately under the applicable exemption as though it were the sole activity of the employee for the whole workweek in question. The availability of a combination exemption depends on whether the employee meets |