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and management services to farmers cannot qual
PRACTICES PERFORMED "ON A FARM" ify as a “farmer” on that account. Neither can a
Section 780.143 Performance "on a farm" repairman who repairs and services farm machinery qualify as a “farmer” on that basis. Where
generally. crops are grown under contract with a person who If a practice is not performed by a farmer, it provides a market, contributes counsel and ad must, among other things, be performed "on a vice, makes advances and otherwise assists the farm" to come within the secondary meaning of grower who actually produces the crop, it is the "agriculture" in section 3(f). Any practice which grower and not the person with whom he contracts cannot be performed on a farm, such as “delivery who is the farmer with respect to that crop (Mit to market", is necessarily excluded, therefore, chell v. Huntsville Nursuries, 267 F.2d 286). when performed by someone other than a farmer
(see Farmers Reservoir Co. v. McComb, 337 U.S. Section 780.142 Farmers' cooperative as a
755; Chapman v. Durkin, 214 F. 2d 360, cert. "farmer".
denied 318 C.S. 897; Fort Mason Fruit Co. v. (a) The phrase "by a farmer" covers practices Durkin, 214 F.2d 363, cert. denied 348 U.S. 897). performed either by the farmer himself or by the Thus, employees of an alfalfa dehydrator engaged farmer through his employees. Employees of a in hauling chopped or unchopped alfalfa away farmers' cooperative association, however, are em from the farms to the dehydrating plant are not ployed not by the individual farmers who compose employed in a practice performed "on a farm”. its membership or who are its stockholders, but
Section 780.144 Meaning of “farm". by the cooperative association itself. Cooperative
A "farm" is a tract of land devoted to the actual associations whether in the corporate form or not,
farming activities included in the first part of are distinct, separate entities from the farmers who
section 3(f). Thus, the gathering of wild plants own or compose them. The work performed by a
in the woods for transplantation in a nursery
is farmers' cooperative association is not work per
not an operation performed "on a farm”. (For a formed “by a farmer" but for farmers. There further discussion, see section 780.176.) The total fore, employees of a farmers' cooperative associ
area of a tract operated as a unit for farming puration are not generally engaged in any practices poses is included in the "farm”, irrespective of the performed "by a farmer” within the meaning of fact that some of this area may not be utilized for section 3(f) and are not ordinarily exempt (Farm actual farming operations (see NLRB v. Olaa ers Reservoir Co. v. McComb, 337 U.S. 755; Gold Sugar Co., 242 F. 2d 714; In re Princeville Can
ning Co., 14 WH Cases 641 and 762). It is imberg v. Crowley Ridge Ass'n., 295 F. 2d 7; McComb
material whether a farm is situated in the city or v. Puerto Rico Tobacco Marketing Co-op Ass'n.,
in the country. However, a place in a city where 80 F. Supp. 953, 181 F. 2d 697). The legislative
no primary farming operations are performed is history of the Act supports this interpretation.
not a farm even if operated by a farmer (Mitchell Statutes usually exempt farmers' cooperative as
v. Huntsville Nurseries, 267 F.2d 286). sociations in express terms if an exemption is intended. The omission of an express exemption Section 780.145 Employment in practices on
a farm. from the Fair Labor Standards Act is significant since many unsuccessful attempts were made on
Employees engaged in building terraces or the floor of Congress to secure special treatment
threshing wheat and other grain, employees enfor such cooperatives.
gaged in the erection of silos and granaries, em(b) It is possible that some farmers' cooperative ployees engaged in digging wells or building dams associations may themselves engage in actual farm
for farm ponds, employees engaged in inspecting ing operations to an extent and under circum
and culling flocks of poultry, and pilots and flagstances sufficient to qualify as a “farmer". In such
men engaged in the aerial dusting and spraying case, any of their employees who perform prac
of crops are examples of the types of employees tices as an incident to or in conjunction with such
of independent contractors who may be considered farming operations are employed in “agriculture”.
employed in practices performed "on
Even though an employee may work on several farms during a workweek, he is regarded as employed "on a farm” for the entire workweek if his work on each farm pertains solely to farming operations on that farm. The fact that a minor and incidental part of the work of such an employee occurs off the farm will not defeat the exemption. Thus, a small amount of time within the workweek spent in transporting necessary equipment for work to be done on farms will not defeat the exemption. Field employees of a canner or processor of farm products who work on farms during the planting and growing season where they supervise the planting operations and consult with the grower on problems of cultivation are employed in practices performed "on a farm" so long as such work is done entirely on farms save for an incidental amount of reporting to their employer's plant. Other employees of the above employers employed away from the farm would not come within the exemption. For example, airport employees such as mechanics, loaders, and office workers employed by a crop dusting firm would not be exempt (see Tobin v. Wenatchee Air Service, 10 WH Cases 680, (E.D. Wash.)). "Such FARMING OPERATIONS">OF THE FARMER
dent to or in conjunction with farming operations, is incidental to or in conjunction with the farming operations of the other farmers and not incidental to or in conjunction with the farming operations of the farmer doing the processing (Mitchell v. Huntsville Nurseries, supra; Farmers Reservoir Co. v. McComb, supra; Bowie v. Gonzalez, supra). Section 780.147 Application of the general
principles. Some examples will serve to illustrate the above principles. Employees of a fruit grower who dry or pack fruit not grown by their employer are not exempt. Storage operations conducted by a farmer in connection with products grown by someone other than the farmer are not exempt. Employes of a grower-operator of a sugar cane mill who transport cane from fields to the mill are not exempt where such cane is grown by independent farmers on their land as well as by the mill operator (Bowie v. Gonzalez, 117 F. 2d 11). Employees of a tobacco grower who strip tobacco (i.e. remove the leaves from the stalk) are not exempt when performing this operation on tobacco not grown by their employer. On the other hand, where a farmer rents some space in a warehouse or packing house located off the farm and the farmer's own employees there engage in handling or packing only his own products for market, such operations by the farmer are exempt if performed as an incident to or in conjunction with his farming operations. Such arrangements are distinguished from those where the employees are not actually employed by the farmer. The fact that a packing shed is conducted by a family partnership, packing products exclusively grown on lands owned and operated by individuals constituting the partnership, does not alter the status of the packing activity. Thus, if in a particular case an individual farmer is exempt, a family partnership which performs the same operations would also be exempt (Dofflemeyer v. NLRB, 206 F. 2d 813). Section 780.148 Pea vining.
Vining employes of a pea vinery located on a farm, who vine only the peas grown on that particular farm, are exempt. If they also vine peas grown on other farms, the exemption does not apply unless the farmer-employer owns or operates
Section 780.146 Practices must be performed
in connection with farmer's own farming. “Practices * * * performed by a farmer" must be performed as an incident to or in conjunction with “such farming operations” in order to constitute "agriculture” within the secondary meaning of the term. Practices performed by a farmer in connection with his non-farming operations do not satisfy this requirement (see Calaf v. Gonzales, 127 F. 2d 934; Mitchell v. Budd, 350 U.S. 473.) Furthermore, practices performed by a farmer can meet the above requirement only in the event that they are performed in connection with the farming operations of the same farmer who performs the practices. Thus, the requirement is not met with respect to employees engaged in any practices performed by their employer in connection with farming operations that are not his own (see Farmers Reservoir Co. v. McComb, 337 U.S. 755; Mitchell v. Hunt, 263 F. 2d 913; NLRB v. Olaa Sugar Co., 242 F. 2d 714; Mitchell v. Huntsville Nurseries, 267 F. 2d 286; Bowie v. Gonzalez, 117 F. 2d 11.) The processing by a farmer of commodities of other farmers, if inci
the other farms and vines his own peas exclusively. the crop at all times, and confer on him the right
“Such FARMING OPERATIONS”—ON THE FARM Section 780.149 Place of performing the prac
Section 780.150 Practices must relate to farmtice as a factor.
ing operations on the particular farm. So long as the farming operations to which a "Practices * * *
on a farm" farmer's practice pertains are performed by him must be performed as an incident to or in conjuncin his capacity as a farmer, the exempt status of tion with “such farming operations” in order to the practice is not necessarily altered by the fact constitute "agriculture” within the secondary that the farming operations take place on more
meaning of the term. No practice performed with than one farm or by the fact that some of the
respect to farm commodities is within the lanoperations are performed off his farm (NLRB v.
guage under discussion by reason of its performOlaa Sugar Co., 212 F.2d 714). Thus, where the
ance on a farm unless all of such commodities are practice is performed with respect to products of the products of that farm. Thus, the performance farming operations, the controlling consideration
on a farm of any practice, such as packing or storis whether the products were produced by the
ing, which may be incidental to farming operafarming operations of the farmer who performs tions cannot constitute a basis for exempting the practice rather than at what place or on whose
employees engaged in such practice if the practice land he produced them. Ordinarily, a practice
is performed upon any commodities that have performed by a farmer in connection with farming
been produced elsewhere than on such farm (see operations conducted on land which he owns or
Mitchell v. Hunt, 263 F. 2d 913). The construcleases will be considered as performed in connec tion by an independent contractor of a granary on tion with the farming operations of such farmer in a farm is not connected with "such" farming opthe absence of facts indicating that the farming
erations if the farmer for whom it is built intends operations are actually those of someone else.
to use the structure for storing grain produced on Conversely, a contrary conclusion will ordinarily other farms. Nor is the requirement met with be justified if such farmer is not the owner or a
respect to employees engaged in any other pracbona fide lessee of such land during the period
tices performed on a farm, but not by a farmer, in when the farming operations take place. The
connection with farming operations that are not question of whose farming operations are actually
conducted on that particular farm. The fact that being conducted in cases where they are performed
such a practice pertains to farming operations genpursuant to an agreement or arrangement, not
erally or to those performed on a number of farms, amounting to bona fide lease, bet ween the farmer
rather than to those performed on the same farm who performs the practice and the land-owner
only, is sufficient to take it outside the scope of the necessarily involves a careful scrutiny of the facts
statutory language. Area soil surveys and genetics and circumstances surrounding the arrangement.
research activities, results of which are made availWhere commodities are grown on the farm of the
able to a number of farmers, are typical of the actual grower under contract with another, prac
practices to which this principle applies and which tices performed by the latter on the commodities,
are not exempt under this provision. off the farm where they were grown, relate to
Section 780.151 Practices on a farm not refarming operations of the grower rather than to
lated to farming operations. any farming operations of the contract purchaser. This is true even though the contract purports to Practices performed on a farm in connection lease the land to the latter, give him the title to
with nonfarming operations performed on or off
bility with respect to the product, is highly significant.
PERFORMANCE OF THE PRACTICES "AS AN INCIDENT
TO OR IN CONJUNCTION With" THE FARMING OPERATIONS
Section 780.153 “As an incident to or in con
junction with” the farming operations. In order for practices other than actual farming operations to constitute "agriculture” within the meaning of section 3 (f) of the Act, it is not enough that they be performed by a farmer or on a farm in connection with the farming operations conducted by such farmer or on such farm, as explained in sections 780.138–780.152. They must also be performed "as an incident to or in conjunction with” these farming operations. The line between practices that are and those that are not performed "as an incident to or in conjunction with” such farming operations is not susceptible of precise definition. Generally, a practice performed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business. Industrial operations (Holtville Alfalfa Mills v. Wyatt, 230 F. 2d 398) and processes that are more akin to manufacturing than to agriculture (Maneja v. Waialua, 349 U.S. 254; Mitchell v. Budd, 350 U.S. 473) are not included. This is also true when on-the-farm practices are performed for a farmer. As to when practices may be regarded as performed for a farmer, see section 780.152.
such farm do not meet the requirement stated in section 780.150. For example, if a farmer operates a gravel pit on his farm, none of the practices performed in connection with the operation of such gravel pit would be exempt. Whether or not some practices are performed in connection with farming operations conducted on the farm where they are performed must be determined with reference to the purpose of the farmer for whom the practice is performed. Thus, land clearing operations may or may not be connected with such farming operations depending on whether on not the farmer intends to devote the cleared land to farm use. Section 780.152 Practices on a farm not per
formed for the farmer. The fact that a practice performed on a farm is not performed by or for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted. Thus, where such an employer other than the farmer performs certain work on a farm solely for himself in furtherance of his own enterprise, the practice cannot ordinarily be regarded as performed in connection with farming operations conducted on the farm. For example, it is clear that the work of employees of a utility company in trimming and cutting trees for power and communications lines is part of a non-farming enterprise outside the exemption. When a packer of vegetables or dehydrator of alfalfa buys the standing crop from the farmer, harvests it with his own crew of employees, and transports the harvested crop to his off-the-farm packing or dehydrating plant, the transporting and plant employees, who are not engaged in “primary" agriculture as are the harvesting employees (see NLRB v. Olaa Sugar Co., 242 F. 2d 714), are clearly not exempt. Such an employer cannot automatically gain the exemption for the plant employees by merely transferring the operations to the farm so as to meet the “on a farm” requirement. They will continue outside the exemption if the packing or dehydrating is not in reality done for the farmer. The question of for whom the practices are performed is one of fact. In determining the question, however, the fact that prior to the performance of the packing or dehydrating operations, the farmer has relinquished title and divested himself of further responsi
Section 780.154 The relationship is determined
by consideration of all relevant factors. The character of a practice as a part of the agricultural activity or as a distinct business activity must be determined by examination and evaluation of all the relevant facts and circumstances in the light of the pertinent language and intent of the Act. The result will not depend on any mechanical application of isolated factors or tests. Rather, the total situation will control (Maneja v. Waialua, 319 U.S. 254; Mitchell v. Budd, 350 U.S. 473). Due weight should be given to any available criteria which may indicate whether performance of such a practice may prop
erly be considered an incident to farming within minimum wages and overtime is provided (see the intent of the Act. Thus, any mention or lack Bowie v. Gonzales, 117 F. 2d 11). The Supreme of mention of the particular practice in related Court has considered the treatment of the practice provisions of the Act (see section 780.155), the under section 13(a) (10) of the Act especially siggeneral relationship, if any, of the practice to nificant as an indication of the intent to include farming as evidenced by common understanding, or exclude it under the exemption for agriculture. competitive factors, and the prevalence of its per The section 13(a) (10) exemption for specified formance by farmers (see section 780.156), and operations performed within the "area of producsimilar pertinent matters should be considered. tion" on agricultural or horticultural commodities Other factors to be considered in determining for market was intended, as shown by the legislawhether a practice may be properly regarded as in tive history cited by the Court, to equalize the cost cidental to or in conjunction with the farming op position of the small farmer who does not have erations of a particular farmer or farm include his own facilities to prepare the crop for market the size of the operations and respective sums in with that of the large farmer who does have such vested in land, buildings and equipment for the facilities, by providing a minimum wage and overregular farming operations and in plant and time exemption for independent operators of such equipment for performance of the practice, the facilities who provide these services for the small amount of the payroll for each type of work, the farmers' crops. Accordingly, in the Court's view, number of employees and the amount of time they the omission of a particular practice from those spend in each of the activities, the extent to which listed in section 13(a) (10) indicates that it is not the practice is performed by ordinary farm em within the intended scope of the exemption for ployees and the amount of interchange of employ agriculture, especially if the practice is expressly ees between the operations, the amount of revenue mentioned in a narrower exemption. Thus, with derived from each activity, the degree of indus respect to the processing of sugar cane, the Court trialization involved, and the degree of separation said in Maneja v. Waialua, 349 U.S. 254: "Conestablished between the activities. With respect to gress would not have omitted sugar milling from practices performed on farm products (see section the ‘area of production' exemption if it had not 780.157) and in the consideration of any specific concluded that it also fell outside the agricultural practices (see sections 780.158-780.183), there may exemption." be special factors in addition to those above men
Section 780.156 Importance of relationship of tioned which may aid in the determination.
the practice to farming generally. Section 780.155 Importance of related exemp
As pointed out previously in section 780.105, the tions.
exemption provided by sections 3 (f) and 13(a) (6) As indicated in section 780.9 of Subpart A of this was meant to apply only to agriculture. The incluPart 780, the exemptions in the Act which relate sion of incidental practices in the definition of to agriculture and its products should be construed agriculture was not intended to exempt typical together to form a consistent whole. In determin factory workers or industrial operations, and the ing whether a given practice should be considered
sponsors of the exemption made it clear that the to be performed as an incident to or in conjunction erection and operation on a farm by a farmer with farming operations within the secondary
of a factory, even
one using raw materials meaning intended to be given to "agriculture” which he grows, "would not make the manufacturunder the definition in section 3 (f) of the Act, it ing * * * a farming operation” (see 81 Cong. Rec. is important to consider any mention or omis
7658; Maneja v. Waialua, 349 U.S. 254). Accordsion of the practice in the related exemption ingly, in determining whether a given practice is provisions of the Act.
For example, a prac performed “as an incident to or in conjunction tice for which an exemption from the over with" farming operations under the intended time provisions only is specifically provided in
meaning of section 3(f), the nature of the pracanother section of the Act would not appear to be tice and the circumstances under which it is perone which Congress intended to include in "agri
formed must be considered in the light of the culture” for which a complete exemption from common understanding of what is agricultural and