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which employs the employee is in a city or town as defined in section 13 (b) (9). The location of secondary studios of the radio or television station is immaterial. It is the location of the "major" studio that determines the qualification of the employer for the exemption. A major studio for purposes of the exemption is the main studio of the radio or television station as designated on the station's license by the Federal Communications Commission. It is this major studio which must be located in the city or town as defined in section 13(b) (9) of the Act.

Section 793.18 LOCATION OF "MAJOR STUDIO"

Section 13(b)(9) specifies that the "major studio" must be located "(A) in a city or town of one hundred thousand population or less, according to the latest available decennial census figures as compiled by the Bureau of the Census, except where such city or town is part of a standard metropolitan statistical area, as defined and designated by the Bureau of the Budget, which has a total population in excess of one hundred thousand, or (B) in a city or town of twenty-five thousand population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area." These tests may be summarized as follows:

(a) A city or town with more than 100,000 population. The exemption does not apply to any employee of a radio or television station the major studio of which is located in any city or town with a population in excess of 100,000.

(b) A city or town with 100,000 population or less. The exemption may apply if the major studio is located in a city or town of not more than 100,000 population: Provided, That the city or town is not within a standard metropolitan statistical area which has more than 100,000 population.

(c) A city or town with 25,000 population or less. The exemption may apply even if the major studio is located in a city or town that is within a standard metropolitan statistical area which has more than 100,000 population: Provided, That such city or town has a population of not more than 25,000, and the city or town is at least 40 airline miles from the principal city in such area.

(d) Sources of information. The Bureau of the Budget issues periodically a booklet entitled "Standard Metropolitan Statistical Areas", which lists and describes these areas in the United States and Puerto Rico. The booklet lists the Standard metropolitan statistical areas by name and shows their population according to the latest available decennial census figures as compiled by the Bureau of the Census. The booklet also lists the major cities within each standard metropolitan statistical area and the population of these cities. From time to time, new areas are designated as "standard metropolitan statistical areas" and areas once designated as such are deleted from the area definitions. This booklet may be purchased, for 25 cents, from the Superintendent of Documents, U.S. Government Printing Office, Washington 25, D.C.

(e) Principal city. The term "principal city", as used in section 13 (b) (9), means the "central city", or cities, of the standard metropolitan statistical area, which are defined and designated as such by the Bureau of the Census. The name of the "central city" is incorporated in the name of the standard metropolitan statistical area. Where two or more cities are designated by the Bureau of the Census as the "central cities", the names of such cities appear in the title of the standard metropolitan statistical area. For example, the "Duluth-Superior" standard metropolitan statistical area, has two "central" cities, namely Duluth and Superior; both appear in the title of the standard metropolitan statistical area, and both are regarded as "principal" cities for purposes of the section 13(b) (9) exemption. Where, as in the example, more than one city is designated as the "central" city, airline mileage will be measured from that "central" city which is nearest to the city or town in which the major studio of the radio or television station is located.

(f) Determining the population. The population of a city or town, or of a standard metropolitan statistical area, will be determined by the latest available decennial census figures as compiled by the U.S. Bureau of the Census.

(g) Measuring airline miles. Airline miles for purposes of the section 13 (b) (9) exemption are measured, with a straight edge on a map, from the

zero milestone, or the city hall, of the "central" city, to the zero milestone, or city or town hall, of the city or town in which the major studio of the radio or television station is located.

WORKWEEK APPLICATION OF EXEMPTION Section 793.19 WORKWEEK IS USED IN APPLYING THE EXEMPTION

The unit of time to be used in determining the application of the exemption under section 13(b) (9) 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 period 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. The workweek may not be changed for the purpose of evading the requirements of the Act.

Section 793.20 EXCLUSIVE ENGAGEMENT IN EXEMPT WORK

An employee who engages exclusively in a workweek in work which is exempt under section 13(b) (9) is exempt from the Act's overtime requirements for the entire week.

Section 793.21 EXEMPT AND NONEXEMPT WORK

Where an employee in the same workweek performs work which is exempt from the overtime requirements of the Act under section 13(b) (9), and also engages in work to which the overtime requirements apply, he is not exempt from overtime provisions of the Act in that week. (See McComb v. Puerto Rico Tobacco Marketing Coop. 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.) As explained in section 793.13, work which does not come within the occupational duties of an announcer, news editor, or chief engineer, or which is not related and incidental thereto, is not exempt work under section 13 (b) (9). The mere isolated or occasional performance of insubstantial amounts of such nonexempt work will not defeat the exemption for the employee. Where, however, an employee, in a particular workweek, performs a substantial amount of nonexempt work to which the overtime provisions of the Act are applicable, the employee is not exempt under section 13 (b) (9) in that workweek. For administrative purposes an employee who spends 20 percent or more of the hours he works in a workweek in such nonexempt work, will not be considered exempt under section 13 (b) (9) in that workweek.

NOVEMBER 1961 ISSUE

U.S. GOVERNMENT PRINTING OFFICE 1962

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