operations for transportation to the mill, processing plant, or railroad is not such a terminal.

SECTION 788.6 COUNTING THE TWELVE EMPLOYEES

Regardless of his duties, no employee is exempt under section 13 (a) (15) unless, "the number of employees employed by his employer in such forestry or lumbering operations does not exceed twelve."

(a) The determination of the number of employers employed in the named operations is to be made on an occupational and a workweek basis. Thus the exemption will be available in 1 workweek when twelve or less employees are employed in the exempt operations and not in another workweek when more than that number are so employed. For a discussion of the term "work week" see Part 778 of this chapter. The exemption will not be defeated, however, if one or more of the twelve employees so engaged is replaced during the workweek, for example, by reason of illness. But if additional employees are employed during the workweek in the named operations, even if they work on a different shift, the exemption would no longer be available if the total number exceeds twelve. Similarly, all of an employer's employees employed in any workweek in the named operations must be counted in the twelve regardless of where the work is performed or how it is divided. Thus if an employer employs six employees in felling timber and preparing logs at one location and seven at another location in those operations, the exemption would not be available. Similarly, if he employs ten employees in such operations and three other employees in transportation work as discussed in section 788.5, the exemption could not apply. Under such circumstances he would be employing more than twelve employees in the named operations. The fact that some of these employees may not be engaged in commerce or the production of goods for commerce will not affect these conclusions. Except for replacements, therefore, all of an employer's employees employed in the named operations in a workweek must be counted, regardless of where they perform their work or in which of the named operations or combinations of such operations they are employed. The length of time an employee is employed in the named operations during a workweek is also im

material for the purpose of applying the numerical limitation. Thus, even if an employee would not himself be exempt because he is engaged substantially in nonexempt work (see sec. 788.7), nevertheless, if, as a regular part of his duties, he is also engaged in the operations named in the exemption he must be counted in determining whether the twelve employee limitation is satisfied. The exemption is available to an employer, however, even if he has a total of thirteen or more employees, if only twelve of them or less are employed in the named operations. Thus if such an employer employs only twelve employees in the named operations and others in operations not named in the exemption, such as sawmill operations, the exemption is not defeated because of the fact that he employs more than twelve employees altogether. It will not apply, however, to those engaged in the operations not named in the exemption.

(b) In many cases an employer who operates a sawmill or concentration yard will be supplied with logs or other forestry products by several crews of persons who are engaged in the named operations. Frequently some or all of such crews, separately considered, do not employ more than twelve persons, but the total number of such employees is in excess of twelve. Whether the exemption will apply to the members of the individual crews which do not exceed twelve, will depend on whether they are employees of the sawmill or concentration yard to which the logs or other forestry products are delivered or whether each such crew is a truly independently owned and operated business. If the number of employees in such a truly and independently owned and operated business does not exceed twelve, the exemption will apply. On the other hand, the Administrator will assume that the courts will be reluctant to approve as bona fide a plan by which an employer of a large number of woods employees splits his employees into several allegedly "independent businesses” in order to take advantage of the exemption.

5

The Supreme Court has made it clear that there is no single rule or test for determining whether an individual is an employee or an inde

Rutherford Food Corp. v. McComb, 331 U. S. 722; United States v. Silk, 331 U. S. 704; Harrison v. Greyvan Lines, 331 U. S. 704; Bartels v. Birmingham, 332 U. S. 126.

pendent contractor, but that the "total situation controls." In general an employee, as distinguished from a person who is engaged in a business of his own, is one who "follows the usual path of an employee" and is dependent on the business which he serves. As an aid in assessing the total situation the Court mentioned some of the characteristics of the two classifications which should be considered. Among these are: The extent to which the services rendered are an integral part of the principal's business, the permanency of the relationship, the opportunities for profit or loss, the initiative, judgment or foresight exercised by the one who performs the services, the amount of investment, and the degree of control which the principal has in the situation. The Court specifically rejected the degree of control retained by the principal as the sole criterion to be applied.

At least in one situation it is possible to be specific: Where the sawmill or concentration yard to which the products are delivered owns the land or the appropriation rights to the timber or other forestry products, the crew boss has no very substantial investment in tools or machinery used, and the crew does not transfer its relationship as a unit from one sawmill or concentration yard to another, the crew boss and the employees working under him will be considered employees of the

sawmill or concentration yard. Other situations, where one or more of these three factors are not present, will be considered by the Administrator as they arise on the basis of the criteria mentioned in the preceding paragraph. Where all of these three criteria are present, however, it will make no difference if the crew boss receives the entire compensation for the production from the sawmill or concentration yard and distributes it in any way he chooses to the crew members. Similarly, it will make no difference if the hiring, firing and supervising of the crew members is left in the hands of the crew boss.

SECTION 788.7

EMPLOYEES EMPLOYED IN BOTH EXEMPT AND NONEXEMPT WORK

The exemption for an employee employed in exempt work will be defeated in any workweek in which he performs a substantial amount of nonexempt work. For enforcement purposes nonexempt work will be considered substantial in amount if more than 20 percent of the time worked by the employee in a given workweek is devoted to such work. Where the two types of work cannot be segregated, however, so as to permit separate measurement of the time spent in each, the employee will not be exempt.

JANUARY 1950 ISSUE

✩U.S. GOVERNMENT PRINTING OFFICE: 1959-0-526789