« PreviousContinue »
Section 779.107-GOODS DEFINED goods are transferred puts the goods in interThe term “goods” is defined in section 3(i)
state or foreign commerce. The fact that goods of the Act and has a well established meaning
do move in interstate or foreign commerce is under the Act since it has been contained in the strong evidence that the producer intended, statute from the date of its enactment in 1938.
hoped, expected, or had reason to believe that A comprehensive statement of the meaning of
they would so move. the term "goods” is contained in section 776.20
Section 779.109—AMOUNT OF ACTIVI. of this chapter, which also cites the court cases
TIES WHICH CONSTITUTE ENGAGin which the term was construed. The statu
ING IN COMMERCE OR IN THE tory definition of "goods" is set forth in section
PRODUCTION OF GOODS FOR COM779.14. It will be observed that the term
MERCE "goods” includes any part or ingredient of the goods. Also that “goods” as defined in the Act
The Ict makes no distinction as to the perare not limited to commercial goods, or articles centage, volume, or amount of activities of of trade, or, indeed, to tangible property, but
either the employee or the employer which coninclude "articles or subjects of commerce of any
stitute engaging in commerce or in the produccharacter.” Thus telegraphic messages have
tion of goods for commerce. However, an been held to be "goods" within the meaning of employee whose in commerce or production the Act (Western Union Tel. Co. v. Lenroot, activities are isolated, sporadic, or occasional 323 U.S. 490). Some of the "articles or sub
and involve only insubstantial amounts of goods jects of commerce" which fall within the defini
will not be considered "engaged in commerce
or in the production of goods for commerce" by tion of "goods” include written materials such
virtue of that fact alone. The law is settled as newspapers, magazines, brochures, pamphlets, bulletins, and announcements; written
that every employee whose activities in com
merce or in the production of goods for comreports, fiscal and other statements and accounts,
merce, even though small in amount are regular correspondence, and other documents; advertis
and recurring, is considered "engaged in coming, motion pictures, newspaper and radio copy;
merce or in the production of goods for comart work and manuscripts for publication; sam
merce". ple books, letterheads, envelopes, shipping tags, labels, check books, blank books, book covers,
Section 779.110_EMPLOYEES IN REadvertising circulars, and wrappers and other
TAILING WHOSE ACTIVITIES MAY packaging materials.
BRING THEM UNDER THE ACT Section 779.108-GOODS PRODUCED FOR
The discussion in Sections 779.103-779.109 inCOMMERCE
cluded general references to types of employees Goods are "produced for commerce" if they in the retail or service field whose individual are "produced, manufactured, mined, handled
activities constitute engagement in interstate or
State or in
foreign commerce or in the production of goods other manner worked on” in any any for sale, trade, transportation, transmission,
for such commerce within the meaning of the shipment or delivery, to any place outside there
Act. There are many classes of employees of. Goods are produced for commerce where
customarily employed by retail or service estabthe producer intends, hopes, expects, or has lishments or in enterprises of the type described reason to believe that the goods or any unsegre in section 3(s) (1) and 3(s) (5) whose individual gated part of them will move (in the same or in
activities ordinarily constitute engagement in an altered form or as a part or ingredient of commerce or in the production of goods for other goods) in interstate or foreign commerce. commerce within the meaning of the Act. The If such movement of the goods in commerce can groups of employees discussed in the following reasonably be anticipated by the producer when sections 779.111 to 779.118, are illustrative only. the goods are produced, it makes no difference There are other employees whose activities may whether he himself or the person to whom the be covered; also there are other activities per
formed by the groups discussed which would result in coverage under the Act.
Section 779.111-BUYERS AND THEIR
goods for their employer; or who regularly and recurrently pick up at rail heads, air, bus or other such terminals goods originating out-ofState, or deliver to such terminals goods destined to points out-of-State; and dispatchers who route, plan or otherwise control such outof-State deliveries and pick ups, are engaged in interstate commerce within the meaning of the Act.
Buyers and their assistants, employed by retail businesses, as a regular part of their duties, generally travel across State lines, or use the mails, telegraph or telephone for interstate communication to order goods; or they regularly send or receive, across State lines, written reports, messages or other documents. These activities of such employees constitute engagement “in commerce” within the meaning of the Act.
Section 779.115-WATCHMEN AND
Watchmen or guards employed by retail businesses who protect the warehouses, workshops, or store premises where goods moving in interstate or foreign commerce are kept or where goods are produced for such commerce, are covered under the Act.
Section 779.116CUSTODIAL AND
MAINTENANCE EMPLOYEES Custodial and maintenance employees who perform maintenance and custodial work on the machinery, equipment, or premises where goods regularly are produced for commerce or from which goods are regularly shipped in interstate commerce, are engaged in covered activities.
Section 779.112-OFFICE EMPLOYEES
Similarly office employees of retail businesses who regularly and recurrently check records of and make payments for goods shipped to their employer from outside of the State, or regularly and recurrently keep records of or otherwise work on the accounts of their employer's out-of-State customers, or who regularly and recurrently prepare or mail letters, checks, reports or other documents to out-ofState points, are engaged both in commerce and in the production of goods for commerce within the meaning of the Act. Likewise, timekeepers who regularly and recurrently prepare and maintain payrolls for and pay employees who are engaged in commerce or in the production of goods for commerce are themselves engaged in covered activities. Section 779.113_WAREHOUSE AND
STOCK ROOM EMPLOYEES Warehouse and stock room employees of retail businesses who regularly and recurrently engage in the loading or unloading of goods moving in commerce, or who regularly and recurrently handle, pack or otherwise work on goods that are destined to out-of-State points are engaged in covered activities. Section 779.114_TRANSPORTATION
EMPLOYEES Transportation employees of retail businesses, such as truck drivers or truck drivers' helpers, who regularly and recurrently cross State lines to make deliveries or to pick up
Section 779.117-SALESMEN AND SALES
CLERKS A salesman or a sales clerk who regularly and recurrently takes orders for, or sells, or selects merchandise for delivery to points outside the State or which are to be shipped or delivered to a customer from a point outside the State, i.e. drop shipments; or who wraps, packs, addresses or otherwise prepares goods for out-ofState shipment, is performing covered activities. Section 779.118-EMPLOYEES PROVID
ING CENTRAL SERVICES FOR MULTI-UNIT ORGANIZATIONS
Employees providing central services for a multi-unit organization may be engaged both “in commerce” and “in the production of goods for commerce" within the meaning of the Act. For example, employees engaged in work relating to the coordinated purchasing, warehousing and distribution (and in the administrative and clerical work relating to such activities)
for various retail units of a chain are covered under the Act. (See Phillips Co. v. Walling, 324 U.S. 490; Walling v. Jacksonville Paper Co., 317 U.S. 564, affirming, 128 F. 2d 935 (CA
Mitchell v. C. & P. Stores, 286 F. 2d 109 (CA-5); Mitchell v. E. G. Shinner & Co., Inc., 221 F. 2d 260 (CA-7); Donovan v. Shell Oil Co., 168 F. 2d 776 (CA-8). In addition, employees who regularly and recurrently correspond and maintain records of activities of outof-State stores and such employees as traveling auditors, inventory men, window display men, etc., who regularly travel from State to State in the performance of their duties are covered
under the Act. (See Mitchell v. Kroger Co.,
Of course, it should be noted that although employees may be engaged in commerce or in the production of goods for commerce within the meaning of the Act, they may be exempt from the Act's minimum wage or overtime provisions (or both). For a complete list of such exemptions the Act should be consulted. Those exemptions, however, which are of particular interest to employers and employees in the retail field are discussed in Subparts D, E, and F of this part.
Subpart C-EMPLOYMENTS TO WHICH THE ACT MAY
APPLY; ENTERPRISE COVERAGE
ENTERPRISE; THE ACT'S NEW
ployees are entitled to the minimum wage and BUSINESS UNIT
overtime benefits and to the child labor pro
tection, under sections 6, 7 and 12 of the Act. Section 779.200_COVERAGE EXPANDED
In general, if the "enterprise" comes within any BY 1961 AMENDMENTS
of the five categories described in section 3(s) The 1961 amendments for the first time since
(1) through (5), all employees employed in the enactment of the Fair Labor Standards
the "enterprise” are covered by the Act and, Act of 1938 provide that all employees in a regardless of their duties, are entitled to the
Act's benefits unless a specific exemption particular business unit are covered by the Act. Prior to the amendments each employee's cov applies. erage depended on whether that employee's
Section 779.202-BASIC CONCEPTS OF activities were in commerce or constituted the
DEFINITION production of goods for commerce. Now all employees employed in an “enterprise” de
(a) General. Under the definition, the “enscribed in section 3(s) (1) through (5) of the
terprise" consists of “the related activities perAct are covered. Thus, it is necessary to con
formed * * * for a common business purpose." sider the meaning of the term "enterprise” as
All of the activities comprising the enterprise
must be "related". Activities which are not used in the Act.
related are not included in the enterprise. Section 779.201—THE PLACE OF THE
(b) Activities which are included. Further, TERM “ENTERPRISE” IN THE ACT
the definition makes clear that the enterprise The term "enterprise" is defined in section includes all such related activities which are 3(r) of the Act (see section 779.21) and, wher
performed through “unified operation” or “comever used in the Act, is governed by this def mon control”. This is true even if they are inition. The term is a key in determining the performed by more than one person, or in more applicability of the Act to these businesses. than one establishment, or by more than one The "enterprise” is the unit for determining corporate or other organizational unit. It spewhether the requisite dollar tests and other con
cifically includes, as a part of the enterprise, ditions of section 3(s) (1) through (5) are departments of an establishment operated met, and the unit for determining which em through leasing arrangements.
(c) Activities which are excluded. The definition excludes from the "enterprise” activities performed “for” the enterprise by an independent contractor even if they are related to the activities of the enterprise. Also, it makes clear that a truly independent retail or service establishment does not become a part of a larger enterprise merely because it enters into certain types of franchise or collective purchasing arrangements or because it has a common land. lord with other such retail establishments.
Section 779.203–DISTINCTION BETWEEN "ENTERPRISE", "ESTABLISHMENT AND "EMPLOYER”
(a) The coverage, exemption and other provisions of the Act depend, in part, on the scope of the terms "employer," "establishment,” or "enterprise.” The term "employer" has been defined in the Act since its inception and has a well established meaning. As defined in section 3(d), it includes, with certain stated exceptions, any person acting directly or indirectly in the interest of an employer in relation to an employee. (See section 779.19.) The term “establishment” means a "distinct physical place of business” rather than “an entire business or enterprise.” (See section 779.23.)
(b) The term “enterprise” has not previously been used in the Act, but the careful definition and the legislative history of the 1961 amendments provide guidance as to its meaning and application. As defined in the Act, the term "enterprise” is roughly descriptive of a business rather than of an establishment or of an employer although on occasion the three may coincide. The enterprise, however, is not necessarily co-extensive with the entire business activities of an employer.
(c) The enterprise may consist of a single establishment (see section 779.204 (a)) which may be operated by one or more employers; or it may be composed of a number of establishments which may be operated by one or more employers (see section 779.204(b)). On the other hand, a single employer may operate more than one enterprise (see section 779.204(c)). The Act treats as separate enterprises different businesses which are unrelated to each other even if they are operated by the same employer.
Section 779.204-COMMON TYPES OF
"ENTERPRISE” (a) The single establishment business. In the simplest type of organization—the single business unit, owned and operated by one person--the "enterprise" is readily identifiable. The entire business ordinarily is one enterprise. In many cases the entire business activity of the single owner-employer is performed in one establishment. An example is the typical independently owned and controlled retail store. In that case the establishment and the enterprise are one and the same. All of the activities of the store are “related” and are performed for a single business purpose and there is both unified operation and common control. The entire business is the unit for applying the statutory tests. If the coverage tests are met, all of the employees employed by the establishment are employed in the enterprise and will be entitled to the benefits of the Act unless otherwise exempt.
(b) The multi-unit business. The enterprise also is readily identifiable in many cases where one company conducts its single business in a number of establishments. An example of such an enterprise is the typical chain of retail stores. All of the activities ordinarily are related and performed for one business purpose. The single company which owns the chain also controls the entire business. In such circumstances, the entire business is a single enterprise. The dollar volume of the entire business from all of its establishments is added together to determine whether the requisite dollar volume tests are met. If the coverage tests are met, all of the employees employed in the business will be entitled to the benefits of the Act unless otherwise exempt.
(c) Complex business organizations. In complex business organizations, questions may arise as to whether certain activities are a part of a particular enterprise. In some cases one employer may operate several separate enterprises; in others, several employers may conduct their business activities in such a manner that they are part of a single enterprise. The answer, in each case, as to whether or not the "enterprise” includes certain activities will depend upon whether the particular activities are
"related" to the business purpose of the enterprise and whether they are performed through “unified operation” or “common control,” or whether, on the other hand, they are performed for a separate and distinct business. As the Senate Report states, “related activities conducted by separate business entities will be considered a part of the same enterprise where they are joined either through unified operation or common control into a unified business system or economic unit to serve a common business purpose.” (S. Rept. 145, 87th Cong., 1st Sess., p. 41.) Sections 779.205 through 779.211 discuss the terms of the definition and may aid in making these determinations.
RELATED ACTIVITIES Section 779.205-ENTERPRISE MUST CONSIST OF "RELATED ACTIVITIES"
The enterprise must consist of certain "related activities”; activities which are not "related” are not a part of the enterprise even if performed by the same employer. Moreover, even if activities are “related" they may be excluded from the enterprise if they are performed "for” the enterprise by an independent contractor. This is discussed separately in section 779.206.
housing, bookkeeping, purchasing, advertising, including, generally, all activities which are necessary to the operation and maintenance of the particular business. So also, all activities which are performed as a part of a unified business operation will be "related,” including, in appropriate cases, the manufacturing, warehousing and distribution of its goods, the repair and maintenance of its equipment, machinery and its premises, and all other activities which are performed for the common business purpose of the enterprise.
(b) Generally, the answer to the question whether particular activities are "related" or not, will depend in each case upon whether the activities serve the business purpose of the enterprise, or whether they serve a separate and unrelated business. For example, where a company operates retail or service establishments, and also engages in a separate and unrelated construction business, the construction activities will not be "related” and will constitute a separate enterprise if they are conducted independently and apart from the retail operations. Where, however, the retail and construction activities are conducted for a common business purpose, they may be “related", and if they are performed through unified operation or common control, they will be a part of a single enterprise. Thus, a retail store enterprise may engage in construction activities to serve its retail operations. It may act as its own contractor in constructing or reconstructing its own stores and related facilities. In such a case, the construction activities will be "related” activities and the construction employees who are employed by the retail enterprise will be covered if the retail enterprise is covered. Other examples may also be cited. The answer in each case will necessarily depend upon all the facts. Section 779.207_RELATED ACTIVITIES
IN RETAIL OPERATIONS In the case of an enterprise which has one or more retail or service establishments, all of the activities which are performed for the furtherance of the common business purpose of operating the retail or service establishments are "related activities.” It is not material that the enterprise sells different goods or provides dif
Section 779.206_WHAT ARE “RELATED
ACTIVITIES (a) The Senate Report on the 1961 amendments states as follows, with respect to the meaning of related activities:
Within the meaning of this term, activities are "related” when they are the same or similar, such as those of the individual retail or service stores in a chain, or departments of an establishment operated through leasing arrangements. They are also “related" when they are auxiliary and service activities such as central office and warehousing activities and bookkeeping, auditing, purchasing, advertising and other services. Likewise, activities are “related” when they are part of a vertical structure such as the manufacturing, warehousing, and retailing of a particular product or products under unified operation or common control for a common business purpose. (Senate Report No. 145, 87th Cong., 1st Sess., Page 41.) Thus, activities will be regarded as “related" when they are the same or similar or when they are auxiliary or service activities such as ware