Page images
PDF
EPUB

engaged in the racing, training and care of horses and other activities performed off the farm in connection with commercial racing are not exempt. For this purpose, a training track at a race track is not a farm. Where a farmer is engaged in both the raising and commercial racing of race horses, the activities performed off the farm by his employees as an incident to racing, such as the training and care of the horses, are not practices performed by the farmer in his capacity as a farmer or breeder as an incident to his raising operations. Employees engaged in the feeding, care and training of horses which have been used in commercial racing and returned to a breeding or training farm for such care pending entry in subsequent races are exempt.

(c) Raising of bees. The term "raising of * * * bees" refers to all of those activities customarily performed in connection with the handling and keeping of bees, including the treatment of disease and the raising of queens.

(d) Raising of fur-bearing animals. (1) The term "fur-bearing animals" has reference to animals which bear fur of marketable value and includes, among other animals, rabbits, silver foxes, minks, squirrels, and muskrats. Animals whose fur lacks marketable value, such as albino and other rats, mice, guinea pigs, and hamsters, are not "fur-bearing animals" within the meaning of section 3 (f).

(2) The term "raising" of fur-bearing animals includes all those activities customarily performed in connection with breeding, feeding and caring for fur-bearing animals, including the treatment of disease. Such treatment of disease has reference only to disease of the animals being bred and does not refer to the use of such animals or their fur in experimenting with disease or treating diseases in others. The fact that muskrats or other furbearing animals are propagated in open water or marsh areas rather than in pens does not prevent the raising of such animals from constituting the "raising of furbearing animals". Where wild fur-bearing animals propagate in their native habitat and are not raised as above described, the trapping or hunting of such animals and activities incidental thereto are not exempt.

(e) Raising of poultry-(1) General. (i) The term "poultry" includes domesticated fowl and game birds. Ducks and pigeons are included. Canaries and parakeets are not included.

(ii) The "raising" of poultry includes the breeding, hatching, propagating, feeding and general care of poultry. Slaughtering, which is the antithesis of "raising", is not included. To constitute "agriculture", slaughtering must come within the secondary meaning of the term care The temporary feeding and of "agriculture". chickens and other poultry for a few days pending sale, shipment or slaughter is not the "raising" of poultry. However, feeding, fattening and caring for poultry over a substantial period may constitute the "raising" of poultry.

(2) Feed stores. Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed and possibly additional

items. Typically, the feed dealer or processor retains title to the chickens until they are sold. Under such an arrangement, the activities of the farmers are clearly exempt. The activities of the feed dealer or processor, on the other hand, are not exempt.

35

(3) Hatcheries. Hatchery operations incident to the breeding of poultry, whether performed in a rural or urban location, are the "raising of poultry". The exemption for employees of hatcheries is further discussed in § 780.23.

$780.14 General statement on secondary agriculture. (a) The discussion in §§ 780.8 to 780.13 relates to the direct farming operations which come within the "primary" meaning of the definition of "agriculture". As defined in section 3 (f) "agriculture" includes not only the distinctively farming activities described in the "primary" meaning but also includes, in its "secondary" meaning, "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."

(b) To come within this secondary meaning, a practice must be performed either by a farmer or on a farm. It must also be performed either in connection with the farmer's own farming operations or in connection with farming operations conducted on the farm where the practice is performed. In addition, the practice must be performed "as an incident to or in conjunction with" the farming operations. No matter how closely related it may be to farming operations, a practice performed neither by a farmer nor on a farm is not within the scope of the "secondary" meaning of "agriculture". Thus, employees employed by commission brokers in the typical activities conducted at their establishments; warehouse employees at the typical tobacco warehouses; shop employees of an employer engaged in the business of servicing machinery and equipment for farmers; plant employees of a company dealing in eggs or poultry produced by others; employees of an irrigation company engaged in the general distribution of water to farmers; and other employees similarly situated do not generally come within the secondary meaning of “agriculture".

§ 780.15 Performance by a farmer. (a) “By a farmer": (1) Among other things, a practice must be performed by a farmer or on a farm in order to come within the secondary portion of the definition of "agriculture". No precise lines can be drawn which will serve to delimit the Essentially, however, the term "farmer" in all cases. term is an occupational title and the employer must be engaged in activities of a type and to the extent that the person ordinarily regarded as a "farmer" is engaged in order to qualify for the title. If this test is met, it is immaterial for what purpose he engages in farming or whether farming is his sole occupation. Thus, an employer's status as a "farmer" is not altered by the fact that his only purpose is to obtain products useful to him in a non-farming enterprise which he conducts. For ex35 Miller Hatcheries v. Boyer, 131 F. 2d 283.

ample, an employer engaged in raising nursery stock is a "farmer" for purposes of section 3 (f) even though his purpose is to supply goods for a separate enterprise where he engages in the retail distribution of nursery products. (2) "Farmer" includes the employees of a farmer. It does not include an employer merely because he employs a farmer or appoints a farmer as his agent to do the actual work. Thus, the stripping of tobacco, i. e., removing leaves from the stalk, by the employees of an independent warehouse is not a practice performed "by a farmer" even though the warehouse acts as agent for the tobacco farmer or employs the farmer in the stripping operations. One who engages merely in practices which are incidental to farming is not a "farmer." For example, a company which merely prepares for market, sells, and ships flowers and plants grown and cultivated on farms by affiliated corporations is not a "farmer." The mere fact, however, that one has suspended actual farming operations during a period in which he performs only practices incidental to his past or prospective farming operations does not preclude him from qualifying as a "farmer."

36

(3) The term "farmer" as used in section 3 (f) is not confined to individual persons. Thus, a farmers' cooperative or a corporation which engages in actual farming operations may be a "farmer." It does not necessarily follow, however, that any employer is a "farmer" simply because he engages in some actual farming operations of the type specified in section 3 (f). Thus, one who merely harvests a crop of agricultural commodities is not a "farmer" although his employees who actually do the harvesting are employed in "agriculture" and are exempt in those weeks when exclusively so engaged.

(4) Generally, an employer must undertake farming operations of such scope and significance as to constitute a distinct activity, for the purpose of yielding a farm product, in order to be regarded as a “farmer". One who merely performs services or supplies materials for farmers in return for compensation in money or farm products is not a "farmer". Thus, a person who provides credit and management services to farmers cannot qualify as a "farmer" on that account. Neither can a repairman who repairs and services farm machinery qualify as a "farmer" on that basis.

(5) As a general rule, a farmer performs his farming operations on land owned, leased, or controlled by him and devoted to his own use." The mere fact, therefore, that an employer harvests a growing crop, even under a partnership agreement pursuant to which he provides credit, advisory or other services, is not generally considered to be sufficient to qualify the employer so engaged as a "farmer". Such an employer would stand, in packing or handling the product, in the same relationship to the produce as if it were from the fields or groves of an independent grower.

(b) Farmers' cooperative as a "farmer":

(1) The phrase "by a farmer" covers practices performed either by the farmer himself or by the farmer through his employees. Employees of a farmers' coop

[blocks in formation]

erative association, however, are employed not by the individual farmers who compose its membership or who are its stockholders, but by the cooperative association itself. Cooperative associations, whether in the corporate form or not, are distinct, separate entities from the farmers who own or compose them. The work performed by a farmers' cooperative association is not work performed by a farmer but for farmers.38 Therefore, employees of a farmers' cooperative association are not generally engaged in any practices performed "by a farmer” within the meaning of section 3 (f) and are not ordinarily exempt."

(2) It is possible that some farmers' cooperative associations may themselves engage in actual farming operations to an extent and under circumstances sufficient to qualify as a "farmer". In such case, any of their employees who performs practices as an incident to or in conjunction with such farming operations are employed in "agriculture".

§ 780.16 Performance on a farm. (a) If a practice is not performed by a farmer, it must, among other things, be performed "on a farm" to come within the secondary meaning of "agriculture" in section 3 (f). Any practice which cannot be performed on a farm, such as "delivery to market", is necessarily excluded, therefore, when performed by someone other than a farmer. Thus, employees of an alfalfa dehydrator engaged in hauling chopped or unchopped alfalfa away from the farms to the dehydrating plant are not employed in a practice performed "on a farm". A "farm" is a tract of land devoted to the actual farming activities included in the first part of section 3 (f). The total area of a tract operated as a unit for farming purposes is included in the "farm", irrespective of the fact that some of this area may not be utilized for actual farming operations. It is immaterial whether a farm is situated in the city or in the country.

(b) 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. Employees engaged in building terraces or threshing wheat and other grain; employees engaged in the erection of silos and granaries; employees engaged in digging wells or building dams for farm ponds; employees engaged in inspecting and culling flocks of poultry; and pilots and flagmen engaged in the aerial dusting and spraying of crops are examples of the types of employees of independent contractors who may be considered employed in practices performed "on a 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. Other employees of the above

38 The legislative history of the Act supports this interpretation. Statutes usually exempt farmers' cooperative associations in express terms if an exemption is intended. The omission of an express exemption from the Fair Labor Standards Act is significant since many unsuccessful attempts were made on the floor of Congress to secure special treatment for such cooperatives. Puerto Rico Tobacco Marketing Coop. Ass'n. v. McComb, 181 F. (2d) 697.

INTERPRETATIVE BULLETIN

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.

(c) The gathering of wild plants in the woods for transplantation in a nursery is not an operation performed "on a farm." 40 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.

41

$780.17 Operations of the farmer who performs the practices. (a) "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. 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. Some examples will serve to illustrate the above principle. 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. Employees 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." 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." 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.

40 For a further discussion, see § 780.22.

41 Such employees may be exempt, however, on the basis of their engagement in practices on a farm in connection with farming operations on that farm. See $780.18.

42 Bowie V. Gonzales, 117 F. 2d 11.

43 Such arrangements are distinguished from those where the employees are not actually employed by the farmer.

Dofflemeyer v. NLRB, 206 F. 2d 813.

(b) Vining employees 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 farmeremployer owns or operates the other farms and vines his own peas exclusively. However, the work of vining station employees in weeks in which the stations vine only peas grown by a canner on farms owned or leased by him is considered part of the canning operations. As such, the cannery operations, including the vining opera- . tions, are exempt only if the canner cans crops which he grows himself and if the canning operations are subordinate to the farming operations.

(c) So long as the farming operations to which a farmer's practice pertains are performed by him in his capacity as a farmer, the exempt status of the practice is not neces⚫ sarily altered by the fact that the farming operations take place on more than one farm or by the fact that some of the operations are performed off his farm. Thus, where the practice is performed with respect to products of farming operations, the controlling consideration is whether the products were produced by the farming operations of the farmer who performs the practice rather than at what place or on whose land he produced them. Ordinarily, a practice performed by a farmer in connection with farming operations conducted on land which he owns or leases will be considered as performed in connection with the farming operations of such farmer in the absence of facts indicating that the farming operations are actually those of someone else. Conversely, a contrary conclusion will ordinarily be justified if such farmer is not the owner or a bona fide lessee of such land during the period when the farming operations take place. The question of whose farming operations are actually being conducted in cases where they are performed pursuant to an agreement or arrangement, not amounting to a bona fide lease, between the farmer who performs the practice and the land-owner necessarily involves a careful scrutiny of the facts and circumstances surrounding the arrangement.

§ 780.18 Operations on the farm where the practices are performed. (a) "Practices *** performed * * * on a farm" 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 on a farm in connection with nonfarming operations performed on or off such farm do not meet this requirement. 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. Nor is the requirement met with respect to employees engaged in any practices performed on a farm, but not by a farmer, in connection with farming operations that are not conducted on that particular farm. The fact that such a practice pertains to farming operations generally or to those performed on a number of farms rather than to those performed on the same farm only is sufficient to take it outside the scope of the statutory language. Area soil surveys and genetics research activities, results of which are

made available to a number of farmers, are typical of the practices to which this principle applies.

(b) In the case of some practices, their 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 the farmer intends to devote the cleared land to farm use. The construction by an independent contractor of a granary on a farm is not connected with such farming operations if the farmer for whom it is built intends to use the structure for storing grain produced on other farms.

(c) No practice performed with respect to farm commodities is within the language under discussion by reason of its performance on a farm unless all of such commodities are the products of that farm. Thus, the performance on a farm of any practice, such as packing or storing, which may be incidental to farming operations cannot constitute a basis for exempting employees engaged in such practice if the practice is performed upon any commodities that have been produced elsewhere than on such farm.

(d) The fact that a practice, which is performed on a farm by an employer other than the farmer who operates such farm, is not performed for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted. Thus, if such an employer performs it 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 communication 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 are clearly not exempt.45 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 reliquished title and divested himself of further responsibility with respect to the product, is highly significant.

$780.19 Performance "as an incident to or in conjunction with" farming operations. (a) 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 oper

45 The harvesting employees are exempt. See § 780.12 (b).

46

ations conducted by such farmer or on such farm. They must also be performed "as an incident to or in conjunction with" the farming operations. The line between practices that are and those that are not performed as an incident to or in conjunction with 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 enterprise." The factors to be considered, among others, in determining whether a practice may properly be regarded as incidental to or in conjunction with farming operations are the size of the operations and respective sums invested in land, buildings and equipment for the regular farming operations and in plant and equipment for performance of the practice, the amount of the payroll for each type of work, the number of employees and the amount of time they spend in each of the activities, the extent to which the practice is performed by ordinary farm employees and the amount of interchange of employees between the operations, the amount of revenue derived from each activity, the degree of industrialization involved, the degree of separation established between the activities, and what is ordinarily done by farmers with regard to the practice." With respect to practices performed on farm products, it is also necessary to consider the type of product resulting from the practice-as whether the raw or natural state of the commodity has been changed. Consideration should also be given to the value added to the product as a result of the practice and whether a sales organization is maintained for the disposal of the product.

48

(b) With respect to the practice of transporting farm products from farms to a processing establishment by employees of a person who owns both the farms and the establishment, such practice may or may not be incident to or in conjunction with the employer's farming operations depending on all the pertinent facts. The transportation is clearly incidental to milling operations rather than to farming where the employees engaged in it are hired by the mill, carried on its payroll, do no agricultural work on the farms, and report for and end their daily duties at the mill where the transportation vehicles are kept."

(c) On the other hand, a different result is reached where the facts show that the transportation workers are farm employees whose work is closely integrated with harvesting and other direct farming operations. The

46 These requirements are discussed in §§ 780.15 to 780.18. 47 Maneja v. Waialua Agricultural Co., 349 U. S. 254. 48 In explaining the inclusion of this test, the United States Supreme Court said that "while the word 'ordinarily' appeared in an earlier version of the exemption and was subsequently stricken, the inquiry is nontheless a pertinent one". Maneja v. Waialua Agricultural Co., 349 U. S. 254. Such an inquiry would appear to have a direct bearing on whether a practice is an "established" part of agriculture. See also Mitchell v. Budd, (March 26, 1956) 24 Law Week 4144; 12 WH Cases 805, where the United States Supreme Court found that the following two factors tipped the scales so as to take the employees of tobacco bulking plants outside the scope of the agriculture exemption: Tobacco farmers do not ordinarily perform the bulking operation; the bulking operation is a process which changes tobacco leaf in many ways and turns it into an industrial product. 49 Calaf v. Gonzales, 127 F. 2d 934.

method by which the transportation is accomplished is not material.50

(d) 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. The result will not depend on any mechanical application of isolated factors or tests. Rather, the total situation will control. For example, seasonality of canning operations would not be very helpful as a test to distinguish between operations incident to agriculture and operations of commercial canners who handle a similar volume of the same seasonal crop. But the length of the canning period might cast some light on whether the operations are conducted as a part of agriculture or as a separate undertaking when considered together with the amount of investment, payroll, and other factors. Whether the practice was included or omitted from section 13 (a) (10) of the act is also considered a significant factor in resolving the problem." In some cases, the fact that canned goods are sold under the canner's own label rather than under that of the purchaser may furnish an indication that the canning is conducted as a separate business activity rather than as a part of agriculture.

(e) The following are examples of practices which will normally qualify for exemption when done on a farm, whether done by a farmer or by a contractor for the farmer: The operation of a cook camp for the sole purpose of feeding persons engaged exclusively in agriculture on that farm; artificial insemination; custom corn shelling and grinding of feed; the packing of apples by portable packing machines which are moved from farm to farm packing only apples grown on the particular farm where the packing is being performed; the culling, catching, cooping, and loading of poultry; the threshing of wheat; the shearing of sheep; the gathering and baling of straw. When on-the-farm practices are performed for a farmer, they are tested as though performed by the farmer himself in that no practice which would amount to a principal undertaking when performed by him can be incident to or in conjunction with his farming operations when performed for him by someone else.52

§ 780.20 Named and other included practices-(a) General statement. Section 3 (f) of the act names certain specific practices which come within the secondary meaning of agriculture if performed by a farmer or on a farm as an incident to or in conjunction with such farming operations. The broad language of the definition clearly

50 See Maneja v. Waialua Agricultural Co., 349 U. S. 254, where the United States Supreme Court distinguished Waialua's transportation employees from the transportation employees considered by the First Circuit Court of Appeals in the Bowie and Calaf cases.

61 This was considered highly significant by the United States Supreme Court in deciding that sugar milling is not within section The Court cited the legislative history 13 (a) (6) of the act.

of section 13 (a) (10) to show that it was intended to equalize the position of the small farmer who did not have his own processing facilities with that of the large farmer who did, by providing an exemption for independent processors who processed It concluded that "Congress would the crop of small farmers.

not have omitted sugar milling from the 'area of production' exemption if it had not concluded that it also fell outside the agricultural exemption". Maneja v. Waialua Agricultural Co., 349 U. S. 254.

53 As to when practices may be regarded as performed for a farmer, see § 780.18.

includes all practices thus performed and not merely those named.

(b) Forestry or lumbering operations. (1) Employment in forestry or lumbering operations is expressly included in agriculture if the operations are performed "by a farmer or on a farm as an incident to or in conjunction with such farming operations". While "agriculture" is sometimes used in a broad sense as including the science and art of cultivating forests, the language quoted in the preceding sentence is a limitation on the forestry and lumbering operations which will be considered agricultural for purposes of section 3 (f). It follows that employees of an employer engaged exclusively in forestry or lumbering operations are not within the agricultural exemption.

(2) The term "forestry or lumbering operations" refers to the cultivation and management of forests, the felling and trimming of timber, the cutting, hauling, and transportation of timber, logs, pulpwood, cordwood, lumber, and like products, the sawing of logs into lumber or the conversion of logs into ties, posts, and similar products, and similar operations. It also includes the piling, stacking, and storing of all such products. The gathering of wild plants and of wild or planted Christmas trees are included.53 "Wood working" as such is not included. The manufacture of charcoal under modern methods is neither a "forestry" nor "lumbering" operation and cannot be regarded as "agriculture".

(3) While section 3 (f) speaks of practices performed "in conjunction with" as well as "incident to" farming operations, it would be an unreasonable construction of the act to hold that all practices were to be regarded as agricultural if the person performing the practice did any farming, no matter how little, or resorted to tilling a small acreage for the purpose of qualifying for exemption.54 To illustrate, where an employer owns several thousand acres of timberland on which he carries on lumbering operations and cultivates about 100 acres of farm land which are contiguous to such timberland, he would not be entitled to the benefit of the exemption so far as his forestry or lumbering operations are concerned. In such case, the forestry or lumbering operations would clearly not be subordinate to the farming operations but rather the principal or a separate business of the "farmer".

(4) Logging or sawmill operations on a farm undertaken on behalf of the farmer or on behalf of the buyer of the logs or the resulting lumber by a contract logger or sawmill owner are not within the exemption, unless it can be shown that these logging or sawmill operations are clearly incidental to farming operations on the farm on which the logging or sawmill operations are being conducted. For example, the clearing of additional land for cultivation by the farmer or the preparation of timber for construction of his farm buildings would appear to

53 See § 780.22 on nursery operations. Also see Part 788 (on exemption for forestry or logging operations in which not more than 12 employees are employed) of this chapter.

54 Ridgeway v. Warren, 60 F. Supp. 363 (M. D. Tenn.); 5 WH Cases 450; In re Combs, 5 WH Cases 595 (M. D. Ga.) 10 Labor Cases (CCH) par. 62, 802.

« PreviousContinue »