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Section 779.504—THE RETAILER AND SECTION 12(c)
Section 12(c) was amended in 1961 to prohibit the employment of oppressive child labor in any enterprise engaged in commerce or in the production of goods for commerce. Thus, every enterprise which is covered under the Act, such as the 3(s) (1) and 3(s) (5) enterprises, must comply with section 12(c) of the child labor provisions of the Act. As stated in section 779.503, compliance with this provision is necessary even though a particular establishment or establishments of a covered 3(s) (1) or 3(s) (5) enterprise are exempt from the requirement of compensating its employees in accordance with sections 6 and 7 of the Act.
Section 779.505—"OPPRESSIVE CHILD LABOR” DEFINED
Section 3(1) of the Act defines oppressive child labor as follows:
“Oppressive child labor” means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or (2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child labor age. The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being.
Section 779.506–SIXTEEN-YEAR MINIMUM
The Act sets a 16-year minimum for employment in manufacturing or mining occupations. Furthermore, this age minimum is applicable to employment in all other occupations unless otherwise provided by regulation or order issued by the Secretary.
Section 779.507–FOURTEEN-YEAR MINIMUM
(a) Prohibited occupations. With respect to employment in occupations other than manufacturing and mining, the Secretary is authorized to issue regulations or orders lowering the age minimum to 14 years where he finds that such employment is confined to periods which will not interfere with the minors' schooling and to conditions which will not interfere with their health and well-being. Pursuant to this authority, the Secretary permits the employment of 14- and 15-year-old children in a limited number of occupations where the work is performed outside school hours and is confined to other specified limits. Under the provisions of Child Labor Regulation No. 3 (29 CFR 4.31–4.37) employment of minors in this age group is not permitted in the following occupations: (1) Manufacturing, mining, or processing occupations including occupations requiring the performance of any duties in a workroom or workplace where goods are manufactured, mined, or otherwise processed; (2) Occupations involving the operation or tending of hoisting apparatus or of any powerdriven machinery other than office machines; (3) The operation of motor vehicles or service as helpers on such vehicles; (4) Public messenger service; (5) Occupations declared to be particularly hazardous or detrimental to health or wellbeing by the Secretary; (6) Occupations in connection with (i) transportation of persons or property by rail, highway, air, water, pipeline, or other means; (ii) warehousing and storage; (iii) communications and public utilities; and (iv) construction (including demolition and repair); except office and sales work performed in connection with the occupations specified in this subparagraph does not apply if such work is performed on trains or any other media of transportation or at the actual site of construction operations.
(b) Permissible occupations; conditions. Employment of 14- and 15-year-olds in all occupations other than those in paragraph (a) of this section is permitted by the regulation under certain conditions specified in the regulation.
Section 779.508–EIGHTEEN-YEAR MINIMUM
To protect young workers from hazardous employment, the Act provides for a minimum age of 18 years in occupations found and declared by the Secretary to be particularly hazardous or detrimental to health or well-being for minors 16 and 17 years of age. These occupations may be found in sections 4.51–4.66 of this title. Of particular interest to retailers are sections 4.52, 4.58, 4.62 and 4.63 of this title pertaining to the occupations of motor-vehicle driver and helper, and occupations involving the operation of power-driven hoisting apparatus, bakery machines, and paper products machines.
DRIVER OR DRIVER'S HELPER MAKING LOCAL DELIVERIES
Section 779.509–STATUTORY PROVISION
Section 13(b)(11) exempts from the provisions of section 7 of the Act:
Any employee employed as a driver or driver's helper making local deliveries, who is compensated for such employment on the basis of trip rates, or other delivery payment plan, if the Secretary shall find that such plan has the general purpose and effect of reducing hours worked by such employees to, or below, the maximum workweek applicable to them under section 7(a).
This is an exemption from the overtime pay requirements only.
Section 779.510–CONDITIONS THAT MUST BE MET FOR SECTION 13(b) (11) EXEMPTION
In order that an employee be exempt from the overtime provisions of the Act under section 13(b)(11) he must be employed as a driver or driver's helper making local deliveries, and, he must be compensated for such employment on a trip rate basis or other delivery payment plan, and such plan must be found by the Secretary to have the general purpose or effect of reducing the hours worked by the driver or driver's helper to, or below, the maximum workweek applicable to him under section 7(a) of the Act. If all the preceding conditions are not met the exemption is inapplicable.
Section 779,511—"FINDING BY SECRETARY”
As stated in section 779.510, before the section 13(b)(11) exemption may be claimed, the Secretary must find that the trip rate basis of compensation, or other delivery payment plan used to compensate a driver or a driver's helper making local deliveries, has the general purpose or effect of reducing the hours worked by these employees to, or below, the maximum workweek applicable to them under section 7(a) of the Act.
RECORDS TO BE KEPT BY EMPLOYERS
Section 779,512–THE RECORDKEEPING REGULATIONS
Every employer who is subject to any of the provisions of the Act is required to maintain certain records. The recordkeeping requirements are set forth in regulations which have been published in Subparts A and B of Part 516 of this chapter. Subpart A contains the requirements applicable to all employers employing covered employees, including the general requirements relating to the posting of notices, the preservation and location of records and similar general provisions. Subpart A also contains the requirements relating
Appendix—ENFORCEMENT POLICY WITH RESPECT TO CERTAIN RETAIL AND SERVICE ESTABLISHMENTS
Pursuant to authority in the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), Reorganization Plan No. 6 of 1950 (3 CFR 1949–1953 Comp., p. 1004), and General Order No. 45–A of the Secretary of Labor (15 F.R. 3290), the following enforcement policy has been adopted under the Fair Labor Standards Act, effective September 3, 1961, with respect to compensation for certain employees employed by retail or service establishments having branch stores in the same local community.
1. As an enforcement policy in the administration of the Act, the Administrator of the Wage and Hour Division of the Department of Labor will, unless otherwise directed by the courts, consider that the minimum wage and overtime pay requirements of the Act are complied with, in the case of an employee whose employment in the particular workweek meets
all the conditions set forth in paragraph 2, if for such workweek that employee is paid not less than the minimum wages specified in section 6(b) of the Act and compensation for any overtime worked in accordance with the provisions of section 7(a)(2) of the Act. 2. The applicability to an employee of the enforcement policy stated in paragraph 1 of this notice is subject to the conditions stated in this paragraph 2. The enforcement policy is intended to apply to any employee whose employment during his workweek is in all respects the same as that which was authorized to be treated as exempt from the minimum wage and overtime pay requirements of the Act under an enforcement policy which was in effect prior to September 3, 1961 as stated in paragraph 3 of this notice. This former enforcement policy, which was set forth in the former Section 779.4 (b) (3) of Title 29 of the Code of Federal Regulations, was applicable to certain employees of a retail organization having a main establishment and branch establishments in the same local community and had the effect of excepting such employees, under specified conditions, from the application of the general rule that employees performing central functions for two or more retail or service establishments are subject to the minimum wage and overtime pay requirements of the Act. The enforcement policy stated in paragraph 1 of this notice does not apply to any employee whose employment would not, prior to September 3, 1961, have satisfied all the conditions required by the former enforcement policy as prerequisites to his exempt treatment thereunder. Accordingly, the enforcement policy stated in paragraph 1, like the former enforcement policy, will not apply to an employee unless— (a) He works in a retail or service establishment (as defined in the Act), more than 50 percentum of whose annual dollar volume of sales of goods or services is made within the State in which the establishment is located; and (b) He is employed for the purpose of performing activities which are part of the ordinary business operations of such establishment, and his work relating to branch establishments is confined to similar functions; and (c) The main establishment in which he works, and all the branch establishments to which his work also relates, are establishments which would qualify for exemption under section 13(a)(2) or 13(a)(4) of the Fair Labor Standards Act if the 1961 amendments to such Act had not been enacted; and (d) The main establishment and its branches are, organizationally, operated in the same local community as integral parts of a single store; and (e) The employer does not operate more than four such branches of his main establishment; and
(f) The annual dollar volume of sales of goods and services made by the main establishment is greater than the aggregate annual dollar volume of sales of goods and services made by all the branch establishments.
3. The enforcement policy stated in paragraph 1 of this notice will permit the application to the employees who come within its terms of the same minimum wage and overtime pay standards as are provided by the amended Act for employees who were brought under its provisions for the first time on September 3, 1961 as a result of the 1961 amendments. This is believed to be justified because until that date employers were entitled under section 10 of the Portal-to-Portal Act of 1947 (61 Stat. 84) to be relieved of liability or punishment for any failure to pay minimum wages or overtime compensation to the employees described in paragraph 2 of this notice. This could be done upon a showing of good faith reliance (see 29 CFR 790.13–790.16, 790.18), on the former enforcement policy described in that paragraph, which was in effect during the period beginning October 28, 1950 (15 F.R. 7245, 29 CFR, section 779.4(b)(3)) and ending September 2, 1961 (26 F.R. 8333, 29 CFR section 779.10). As published, this former enforcement policy was expressly limited by a statement that it would be followed “pending judicial clarification of the status of such employees”. As a result of further clarification by the United States Supreme Court and other Federal appellate courts, which indicated that the statute would not support such a policy, no restatement of the former policy was included in the revised interpretative bulletin on the Fair Labor Standards Act as applied to retailers of goods or services, which was published on September 2, 1961, in the Federal Register (26 F.R. 8333,29 CFR Part 779), following the enactment of the Fair Labor Standards Amendments of 1961 (75 Stat. 65).
[27 F.R. 694, Jan. 24, 1962]
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