(b) The provisions of section 11 of the Act are subject to the investigatory authority of the Director, Office of LaborManagement and Welfare-Pension Reports, embodied in section 9 of the Act. The correctness of an interpretation of these provisions can be determined finally and authoritatively only by the courts. It is necessary, however, for the Labor-Management Services Administrator (hereafter referred to as "the Administrator") to reach informed conclusions as to the meaning of the law to enable him to carry out his duties of administration and enforcement. The interpretations of the Administrator contained in this part, which are issued upon the advice of the Solicitor of Labor, indicate the construction of the law which will guide the Administrator in performing his duties unless and until he is directed otherwise by authoritative rulings of the courts or unless and until he subsequently decides that his prior interpretation is incorrect. Under section 12 of the Act, the interpretations contained in this part, if relied upon in good faith, will constitute a defense in any action or proceeding based on any act or omission in alleged violation of section 11 of the Act. The omission, however, to discuss a particular problem in this part, or in interpretations supplementing it, should not be taken to indicate the adoption of any position by the Administrator with respect to such problem or to constitute an administrative interpretation or practice. Interpretations of the Administrator with respect to section 11 are set forth in this part to provide those affected by the provisions of the Act with a "practical guide as to how the office representing the public interest in its enforcement will seek to apply it" (Skidmore v. Swift & Co., 323 U.S. 134, 138). (c) To the extent that prior opinions and interpretations relating to section 11 are inconsistent with the principles stated in this part, they are hereby rescinded and withdrawn. § 486.2 Persons who must retain records. (a) Section 11 of the Welfare and Pension Plans Disclosure Act applies to (1) Any person or persons required to file any plan description or annual report under section 6 or section 7 of the Act; (2) Any person or persons who may be required to publish a report upon re quest pursuant to section 7(a) of the Act; and (3) Any insurance carrier or service or other organization required under section 7(g) of the Act to certify any information necessary for the preparation or filing of any such description or report. (b) The statutory duty on such persons to maintain records cannot be avoided by contract, delegation or otherwise. Thus, if the administrator of a plan arranges with an independent contractor (such as a corporate trustee or benefit plan consultant) to perform functions with respect to the plan and, pursuant to the arrangement, such independent contractor prepares or receives the type of records contemplated by § 486.3 and keeps physical custody of such records, the statutory requirement to see that such records are retained for the required period remains Iwith the administrator and he must make such agreements and arrangements with the independent contractor as are necessary to insure that they are so retained. § 486.3 Records to be retained. (a) The records required to be retained are all documents which will provide in sufficient detail the necessary basic information and data from which the description and reports which are required or may be required under the Act may be verified, explained or clarified, and checked for accuracy and completeness. (b) Such records include (but are not limited to) resolutions and matters relating to the plan for which a description or annual report is or may be required to be filed, journals, ledgers, checks, invoices, bank statements, contracts, agreements, vouchers, worksheets, receipts, claim records and payrolls of any party described in § 486.2 which would tend to support information required in any report under the Act. (c) Records maintained shall also include, where appropriate, information certified to the Administrator by an insurance carrier or service or other organization. Other records such as payrolls from contributing employers, which the reporting person, trustee, or organization, as described in § 486.2 obtains in the regular course of its operations, to the extent such records may be used for said verifying or checking shall also be retained. § 486.4 Manner of keeping records. (a) Records must be kept in reasonable order, in a safe and accessible place and in such a manner that they may be readily inspected and examined by the Director, Office of Labor-Management and Welfare-Pension Reports or his duly authorized representative. (b) The preservation of records on microfilm for the periods required by the Act will satisfy the requirements relating to the retention of records, provided that adequate projection or other viewing equipment is available for inspecting the microfilm and provided further that the microfilmed records are clear reproductions of the original records, and identifiable as to dates. (c) Nothing in this section precludes the use of punch cards or magnetic tape for processing records; Provided, however, That where records of original entry or worksheets are converted to punch cards or tape, the original records and worksheets must be retained for the required period. § 486.5 Period records must be maintained. Persons described in § 486.2 are required to maintain the described records for a period of not less than five years after the filing of the documents based on the information which they contain. It should be noted that even though a plan administrator need not publish an annual report pursuant to section 7(a) of the Act (unless specifically required to do so), because such plan covers more than 25, but fewer than 100 participants, every person or organization described in § 486.2 must retain for a period of not less than five years after the date that an annual report would have been due (but for the exemption) the records described in § 486.3 which relate to information which would have been required in such report. CHAPTER V-WAGE AND HOUR DIVISION DEPARTMENT OF LABOR Part 511 SUBCHAPTER A-REGULATIONS Wage order procedure for Puerto Rico, the Virgin Islands, and American Review committees for Puerto Rico and the Virgin Islands. Utilization of State agencies for investigations and inspections. Records to be kept by employers. Employment of full-time students in retail or service establishments at special minimum wages. 512 515 516 519 520 521 Employment of apprentices. Employment of student learners. 524 Employment of handicapped persons. 525 526 527 528 Employment of handicapped clients in sheltered workshops. Industries of a seasonal nature. Employment of student workers. 530 531 536 541 545 Annulment or withdrawal of certificates for the employment of student learners, apprentices, learners, messengers, handicapped persons, student workers, and full-time students in retail or service establishments at special minimum wage rates. Employment of homeworkers in certain industries. Determinations under and interpretations of Section 3(m) of the Fair Area of production. Defining and delimiting the terms "Any employee employed in a bona fide executive, administrative, or professional capacity, or in the capacity of outside salesman". Homeworkers in the fabric and leather glove industry; the handkerchief, scarf, and art linen industry; the children's dress and related products industry; the women's and children's underwear and women's blouse industry; the needlework and fabricated textile products industry; and the sweater and knit swimwear industry in Puerto Rico. Part 547 Requirements of a "Bona Fide Thrift or Savings Plan". 548 Authorization of established basic rates for computing overtime pay. 549 550 601 602 603 604 606 608 609 610 611 612 613 614 615 616 619 657 Requirements of a "Bona fide profit-sharing plan or trust". Shoe and related products industry in Puerto Rico. Leather, leather goods, and related products industry in Puerto Rico. Metal, machinery, transportation equipment, and allied products industry Electrical, instrument, and related products industry in Puerto Rico. Women's and children's underwear and women's blouse industry in Puerto Children's dress and related products industry in Puerto Rico. Needlework and fabricated textile products industry in Puerto Rico. Men's and boys' clothing and related products industry in Puerto Rico. 661 Banking, insurance and finance industry in Puerto Rico. 670 671 672 673 675 677 678 681 683 687 688 689 690 694 695 697 699 Chemical, petroleum, and related products industry in Puerto Rico. Food and related products industry in Puerto Rico. Lumber and wood products industry in Puerto Rico. Paper, paper products, printing, and publishing industry in Puerto Rico. Wholesaling, warehousing, and other distribution industry in Puerto Rico. Artificial flower, decoration, and party favor industry in Puerto Rico. Fabricated plastic products industry in Puerto Rico. Textile and textile products industry in Puerto Rico. 720 Rubber products industry in Puerto Rico. SUBCHAPTER B-STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS Part 775 General. 776 778 779 780 781 782 783 784 785 786 788 789 790 791 793 794 800 Interpretative bulletin on the general coverage of the wage and hours pro- The Fair Labor Standards Act as applied to retailers of goods or services. The Fair Labor Standards Act as applied to establishments engaged in laundering, cleaning or repairing clothing or fabrics under Section 13(a) (3) of the act. Exemption from maximum hours provisions for certain employees of motor carriers. Application of the Fair Labor Standards Act to employees employed as seamen. Provisions of the Fair Labor Standards Act applicable to fishing and operations on aquatic products. Hours worked. Miscellaneous exemptions. Forestry or logging operations in which not more than twelve employees General statement on the provisions of section 12 (a) and section 15 (a) (1) Joint employment relationship under Fair Labor Standards Act of 1938. Wholesale or bulk distribution of petroleum products by certain enterprises; Equal pay for equal work under the Fair Labor Standards Act. CROSS REFERENCES: For appointment of authorized representatives to grant or deny applications for, and to cancel special certificates for employment of apprentices and learners: See 12 F.R. 6837, Oct. 18, 1947. For appointment of Director and Assistant Director of Field Operations Branch as authorized representatives to grant, deny or cancel special homework certificates, and certificates for employment of handicapped workers or of handicapped clients in sheltered workshops in place of authorized representatives previously designated: See 12 F.R. 7145, Nov. 4, 1947. |