ucts is exempt in any workweek when he engages exclusively in operations meeting the requirements of the section, if he is employed "within the area of production" as defined by the Secretary of Labor.

Section 780.774 Exempt and nonexempt employment.

Where an employee who is employed within the "area of production" performs during the same workweek both work which is exempt under this section 13 (a) (10) and other work to which the Act applies, not exempt from the minimum wage or overtime pay requirements under this or any other section of the Act, he is not exempt that week (see McComb v. Puerto Rico Tobacco Co-op. Marketing Ass'n, 80 F. Supp. 953, affirmed 181 F. 2d 397; Mitchell v. Hunt, 263 F. 2d 913; Abram v. San Joaquin Cotton Oil Co., 46 F. Supp. 969; McComb v. del Valle, 80 F. Supp. 945; Walling v. Peacock Corp., 58 F. Supp. 880; Jordan v. Stark Bros. Nurseries, 45 F. Supp. 769; Waialua v. Maneja, 77 F. Supp. 480). This is an application of the general rule applicable to the agricultural and related exemptions in the Act, which are spelled out in such detail as to "preclude their enlargement by implication" (Addison v. Holly Hill, 322 U.S. 607), under which the performance of any nonexempt work during a workweek defeats an employee's exemption for that workweek. Section 780.775 Work exempt under another section of the Act.

Where an employee's employment during part of his workweek would qualify for exemption under section 13(a)(10) if it continued throughout the workweek, and the remainder of his workweek is spent in employment which, if it continued throughout the workweek, would qualify for exemption under another section or sections of the Act, the exemptions may be combined (see Remington v. Shaw, 52 F. Supp. 465; and see Tobin v. Blue Channel Corp., 198 F. 2d 245, approved in Mitchell v. Myrtle Grove Packing Co., 350 U.S. 891). The availability of a combination exemption depends on whether the employee meets all the requirements of each exemption which it is sought to combine, and the stricter of the requirements of each applies to the combination. The employee is qualified for an exemption in such a case only to the extent provided by whichever of

the combined exemptions is more limited in scope. Thus, if part of an employee's work during the workweek is exempt from both minimum wage and overtime pay requirements under section 13(a) (10), and the rest is exempt only from the overtime pay requirements under section 7(c), the employee is exempt that week from the overtime requirements, but not from the minimum wage requirements.

Section 780.776 Segregation of exempt and nonexempt work.

Nothing in the Act requires an employer to segregate his employees or work in a situation where the employees' duties involve the performance without distinction of work both within and outside the terms of section 13 (a) (10). On the other hand, if he seeks relief under section 13 (a) (10) from the wage and hours requirements of the Act with respect to employees performing work within the terms of such section and other work as well, it is permissible for him to adopt a plan of segregation that will minimize the exclusion of such employees from exemption under the workweek unit rule. He may increase the number of his exempt employees by segregating the work between different groups of employees, employing one group exclusively in activities exempt under section 13 (a) (10), or he may segregate the activities of each individual employee with respect to time of performance so as to bring him within the terms of section 13 (a) (10) for as many complete workweeks as possible. Segregation of the activities of an employee within the workweek will not, of course, exempt the employer from compliance with the wage and hours requirements for any part of the workweek; the employer's duty to comply with such requirements for the entire work week remains so long as any portion of the employee's covered work within such workweek is of a character other than that requisite to exemption of his employment from requirements of the Act. Moreover, no segregation of employees or work can be effective to bring within the exemption any employee who is not, under the Secretary's definition, employed "within the area of production." The burden of effecting segregation between exempt and nonexempt work as between particular workweeks is upon the employer.

SOURCE: Sections 780.800 to 780.820 appear at 26 F.R. 10418, Nov. 3, 1961.

INTRODUCTORY

Section 780.800 Scope and significance of interpretative bulletin.

Subpart A of this Part 780 and this Subpart I together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13 (d) of the Fair Labor Standards Act of 1938, as amended. This section provides an exemption from the minimum wage, overtime pay and child labor provisions of the Act for certain homeworkers employed in making wreaths from evergreens and in harvesting evergreens and other forest products for use in making wreaths. At 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. The meaning and application of the section 13(a) (6) exemption is fully considered in Subpart B of this Part 780.

Section 780.801 General explanatory statement.

Workers in rural areas sometimes engage, as a family unit, around the Christmas holidays, in gathering evergreens and making them into wreaths in their homes. Such workers, under well-settled interpretations by the Department of Labor and the courts, have been held to be employees of the firm which purchases the wreaths and furnishes the workers with wire used in making such wreaths. The exemption for making wreaths under section 13 (d) was included in the Fair Labor Standards Amendments of 1961 to provide minimum wage, overtime pay, and child labor exemptions for this limited class of workers who produce the wreaths in their homes. This

exemption, along with the section 7(b) (3) overtime exemption referred to in section 780.819, is available to workers who meet the prescribed requirements. This Subpart I explains the meaning and application of the section 13 (d) exemption with respect to such workers.

REQUIREMENTS FOR EXEMPTION

Section 780.802 Statutory requirements.

Section 13 (d) of the Act, as amended by the 1961 amendments to the Fair Labor Standards Act, exempts from the minimum wage provisions of section 6, the overtime requirements of section 7 and the child labor restrictions of section 12:

any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths). Section 780.803 What determines the application of the exemption.

The application of this exemption depends on the nature of the employee's work and not on the character of the employer's business. To determine whether an employee is exempt an examination should be made of the activities which that employee performs and the conditions under which he performs them. Some employees of the employer may be exempt and others may not. Section 780.804 General requirements.

The general requirements of the exemption are

that:

(a) the employee must be a homeworker; (b) the employee must be engaged in making wreaths as a homeworker;

(c) the wreaths must be made principally of

evergreens;

(d) any harvesting of the evergreens and other forest products by the homeworkers must be for use in making the wreaths by homeworkers. Section 780.805 Homeworker.

The exemption applies to "any homeworker”. A homeworker within the meaning of the Act is a person who works for an employer in or about a home, apartment, tenement, or room in a residential establishment.

Section 780.806 In or about a home.

Whether the work of an employee is being performed "in or about a home", so that he may be considered a homeworker, must be determined on the facts in the particular case. In general, however, the phrase "in or about a home" includes any home, apartment, or other dwelling place and surrounding premises, such as yards, garages, sheds or basements. A convent, orphanage or similar institution is considered a home.

Section 780.807 Exemption is inapplicable if

wreath-making is not in or about a home.

The section 13(d) exemption does not apply when the wreaths are made in or about a place which is not considered a "home". Careful consideration is required in many cases to determine whether work is being performed in or about a home. Thus, the circumstances under which an employee may engage in work in what ostensibly is a "home" may require the conclusion, on an examination of all the facts, that the work is not being performed in or about a home within the intent of the term and for purposes of section. 13(d) of the Act.

Section 780.808 Examples of places not considered homes.

The following are examples of work places which, on examination, have been considered not to be a "home":

(a) Living quarters allocated to and regularly used solely for production purposes, where workers work regular schedules and are under constant supervision by the employer, are not considered to be a home.

(b) While a convent, orphanage or similar institution is considered a home, an area in such place which is set aside for and used for sewing or other productive work under supervision is not a home.

(c) Where an employee performs work on wreaths in a home and also engages in work on the wreaths for the employer during that workweek in a factory, he is not exempt in that week, since some of his work is not performed in a home. Section 780.809 Wreaths.

The only product which may be produced under the section 13(d) exemption by a homeworker is a wreath having no less than the specified ever

green content. The making of a product other than a wreath is nonexempt even though it is made principally of evergreens.

Section 780.810 Principally.

The exemption is intended to apply to the making of an evergreen wreath. Such a wreath is one made "principally" of evergreens. "Principally" means chiefly, in the main or mainly (Hartford Accident & Indemnity Co. v. Casualty Underwriters Insurance Co., 130 F. Supp. 56). A wreath is made "principally" of evergreens when it is comprised mostly of evergreens. For example, where a wreath is composed of evergreens and other kinds of material, the evergreens should comprise a greater part of the wreath than all the other materials together, including materials such as frames, stands and wires. The principal portion of a wreath may consist of any one or any combination of the evergreens listed in section 13 (d), including "other evergreens." The making of wreaths in which natural evergreens are a secondary component is not exempt.

Section 780.811 Evergreens.

The material which must principally be used in making the wreaths is listed as "natural holly, pine, cedar, or other evergreens." Other plants or materials cannot be used to satisfy this require

ment.

Section 780.812 Other evergreens.

The "other evergreens" of which the wreath may be principally made include any plant which retains its greenness through all the seasons of the year, such as laurel, ivy, yew, fir, and others. While plants other than evergreens may be used in making the wreaths, such plants, whether they are forest products or cultivated plants, cannot be considered as part of the required principal evergreen component of the wreath. Section 780.813 Natural evergreens.

Only "natural" evergreens may comprise the principal part of the wreath. The word "natural" qualifies all of the evergreens listed in the section, including "other evergreen". The term "natural" means that the evergreens at the time they are being used in making a wreath must be in the raw and natural state in which they have been harvested. Artificial evergreens (Herring Magic v.

U.S. 258 F.2d 197; Cal. Casualty Indemnity Exchange v. Industrial Accident Commission of Cal. 90 P. 2d 289) or evergreens which have been processed as by drying and spraying with tinsel or by other means are not included. It is immaterial whether the natural evergreen used in making a wreath has been cultivated or is a product of the woods or forest.

Section 780.814 Harvesting.

The homeworker is permitted to harvest evergreens and other forest products to be used in making the wreath. The word "harvesting" means the removal of evergreens and other forest products from their growing positions in the woods or forest, including transportation of the harvested products to the home of the homeworker and the performance of other duties necessary for such harvesting.

Section 780.815 Other forest products.

The homeworker may also harvest "other forest products" for use in making wreaths. The term "other forest products" means any plant of the forest and includes, of course, deciduous plants as well.

Section 780.816 Use of evergreens and forest products.

Harvesting of evergreens and other forest products is exempt only when these products will be "used in making such wreaths". The phrase "used in making such wreaths" places a definite limitation on the purpose for which evergreens may be harvested under section 13(d). Harvesting of these materials for a use other than making wreaths is nonexempt. Also, such harvesting is nonexempt when the evergreens are used for wreath-making by persons other than the homeworkers (see Mitchell v. Hunt, 263 F. 2d 913). For example, harvesting of evergreens for sale or distribution to an employer who uses them in his factory to make wreaths is not exempt.

WORKWEEK APPLICATION OF EXEMPTION Section 780.817 Workweek is used in applying the exemption.

The unit of time to be used in determining the application of minimum wage and overtime exemptions to an employee is the workweek (see Overnight Motor Transportation Co. v. Missel,

316 U.S. 572; McComb v. Puerto Rico Tobacco Marketing Co-op. Ass'n., 80 F. Supp. 953, affirmed 181 F. 2d 697). A workweek is a fixed and regularly recurring interval of 7 consecutive 24-hour periods. It may begin at any hour of any day set by the employer and need not coincide with the calendar week. Once the workweek has been set it commences each succeeding week on the same day and at the same hour. Changing the workweek for the purpose of escaping the requirements of the Act is not permitted.

Section 780.818 Exclusive engagement in exempt work.

An employee who engages exclusively in a workweek in work which is exempt under section 13(d) is exempt from the Act's minimum wage, overtime requirements and child labor restrictions for the entire week.

Section 780.819 Work exempt under another section of the Act.

Where an employee performs work during his workweek, some of which is exempt under section 13(d) and the remainder under another section or sections of the Act, the exemptions may be combined. The employee's combination exemption is controlled by the exemption which is more limited in scope. For example, if part of his work is exempt from both minimum wage and overtime compensation under section 13(d) and the rest is exempt only from the overtime pay requirements (as under section 7(c) for the first processing of an agricultural commodity within the area of production during seasonal operations), the employee is exempt that week from the overtime provisions, but not from the minimum wage requirements. (See last paragraph of section 780.820 of this subpart regarding the exemption from child. labor requirements.) Attention is directed to the fact that a limited overtime exemption for employees employed in the decorative greens industry is provided under section 7(b) (3) of the Fair Labor Standards Act and Part 526 of this chapter. (See Subpart J of this Part 780.) This exemption is not limited to homeworkers.

Section 780.820 Exempt and nonexempt work.

(a) Where an employee in the same workweek performs work which is exempt from the minimum wage and overtime requirements of the Act

and also engages in work to which these requirements apply but which is not exempt under this or any other section of the Act, he is not exempt from the minimum wage and overtime provisions of the Act in that week (see McComb v. Puerto Rico Tobacco Marketing Co-op. Ass'n., 80 F. Supp. 953, affirmed 181 F. 2d 697; Mitchell v. Hunt, 263 F. 2d 913; Abram v. San Joaquin Cotton Oil Co., 46 F. Supp 969; McComb v. del Valle, 80 F. Supp 945; Walling v. Peacock Corp., 58 F. Supp. 880).

(b) Where a minor performs activities which would be exempt from the child labor provisions. under section 13(d) and in the same workweek also engages in any work which is covered by the

child labor provisions, the employer is not relieved from the child labor requirements of the Act during that workweek with respect to such minor. (Section 4.122 of this title.) In such case, his employer will be obliged to comply with the requirements of section 12 (c) which forbids the employment of "oppressive child labor" in commerce or in the production of goods for commerce and the producer, manufacturer or dealer will be required to comply with section 12(a) which restricts shipment or delivery of goods produced in or about an establishment in which oppressive child labor had been employed. (See Part 4. Subpart G of this title.)

SOURCE: Sections 780.950 to 780.953 appear at 17 F.R. 7929, Aug. 30, 1952, except as otherwise noted. Redesignated at 26 F.R. 10420, Nov. 3, 1961.

Section 780.950 Meaning of term "canning".

(a) As used in section 7 (c) of the Fair Labor Standards Act (as in sections 13(a) (5), 13(a) (10), and 13(b) (4)), the term "canning" means hermetically sealing and sterilizing or pasteurizing and has reference to a process involving the performance of such operations. Other operations performed in connection therewith as integral parts of a single uninterrupted canning process are included, such as necessary preparatory operations performed on the products before they are placed in bottles, cans, or other containers to be hermetically sealed, as well as the actual placing of the commodities in such containers. Also included are subsequent operations such as the labeling of the cans or other containers and the placing of the sealed containers in cases or boxes whether such subsequent operations are performed as a part of an uninterrupted or interrupted process. The term "canning" does not include the placing of commodities or products in cans or other containers that are not hermetically sealed, nor hermetically sealing where no sterilization or pasteurization is performed, as such operations are processing" as distinguished from "canning".

(b) This section replaces and supersedes the statement published in the Federal Register No

vember 27, 1947, as section 780.50 of this part and as Release D-162, which is hereby rescinded and withdrawn. All prior interpretations of the meaning of the term "canning” as used in the Fair Labor Standards Act of 1938, as amended, contained in Interpretative Bulletin No. 14, in Release R-1892 dated January 25, 1943, and in any other releases, statements, rulings, or opinion letters issued by the Department of Labor are, to the extent that they are inconsistent or in conflict with paragraph (a) of this section, hereby rescinded and withdrawn.

[17 F.R. 7929, Aug. 30, 1952, as amended at 26 F.R. 10420, Nov. 3, 1961]

Section 780.951 First processing under section 7(c).

(a) Introductory statement. In the light of administrative experience and of certain relevant court decisions, the Secretary of Labor and the Administrator of the Wage and Hour and Public Contracts Divisions hereby set forth in this section a modification and clarification of certain interpretations published in Interpretative Bulletin No. 14, in Release R-1892, or in any other statements relating to the "first processing" exemptions provided in section 7 (c) of the Fair Labor Standards Act.

(b) Perishable commodities—(1) Processing performed in a single place of employment. An employer who commences processing operations