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					Pt. 790                                                     29 CFR Ch. V (7–1–02 Edition)

                                                                   GENERAL
                                                 § 790.1 Introductory statement.
                                                    (a) The Portal-to-Portal Act of 1947
                                                 was approved May 4, l947. 1 It contains
PART 790—GENERAL STATEMENT                       provisions which, in certain cir-
  AS TO THE EFFECT OF THE POR-                   cumstances, affect the rights and li-
                                                 abilities of employees and employers
  TAL-TO-PORTAL ACT OF 1947 ON                   with regard to alleged underpayments
  THE FAIR LABOR STANDARDS ACT                   of minimum or overtime wages under
  OF 1938                                        the provisions of the Fair Labor Stand-
                                                 ards Act of 1938, 2 the Walsh-Healey
                    GENERAL                      Public Contracts Act, and the Bacon-
Sec.                                             Davis Act. The Portal Act also estab-
790.1   Introductory statement.                  lishes time limitations for the bringing
790.2   Interrelationship of the two Acts.       of certain actions under these three
                                                 Acts, limits the jurisdiction of the
PROVISIONS RELATING TO CERTAIN ACTIVITIES
                                                 courts with respect to certain claims,
 ENGAGED IN BY EMPLOYEES ON OR AFTER
 MAY 14, 1947                                    and in other respects affects employee
                                                 suits and proceedings under these Acts.
790.3 Provisions of the statute.
790.4 Liability of employer; effect of con-        For the sake of brevity, this Act is referred
    tract, custom, or practice.                  to in the following discussion as the Portal
790.5 Effect of Portal-to-Portal Act on de-      Act.
    termination of hours worked.                   (b) It is the purpose of this part to
790.6 Periods within the ‘‘workday’’ unaf-       outline and explain the major provi-
    fected.
                                                 sions of the Portal Act as they affect
790.7 ‘‘Preliminary’’ and ‘‘postliminary’’ ac-
    tivities.                                    the application to employers and em-
790.8 ‘‘Principal’’ activities.                  ployees of the provisions of the Fair
790.9 ‘‘Compensable * * * by an express pro-     Labor Standards Act. The effect of the
    vision of a written or nonwritten con-       Portal Act in relation to the Walsh-
    tract.’’                                     Healey Act and the Bacon-Davis Act is
790.10 ‘‘Compensable * * * by a custom or        not within the scope of this part, and is
    practice.’’                                  not discussed herein. Many of the pro-
790.11 Contract, custom or practice in effect    visions of the Portal Act do not apply
    ‘‘at the time of such activity.’’            to claims or liabilities arising out of
790.12 ‘‘Portion of the day.’’
                                                 activities engaged in after the enact-
    DEFENSE OF GOOD FAITH RELIANCE ON            ment of the Act. These provisions are
     ADMINISTRATIVE REGULATIONS, ETC.            not discussed at length in this part,3
790.13 General nature of defense.
                                                   1 An act to relieve employers from certain
790.14 ‘‘In conformity with.’’
790.15 ‘‘Good faith.’’                           liabilities and punishments under the Fair
790.16 ‘‘In reliance on.’’                       Labor Standards Act of 1938, as amended, the
790.17 ‘‘Administrative regulation, order,       Walsh-Healey Act, and the Bacon-Davis Act,
    ruling, approval, or interpretation.’’       and for other purposes (61 Stat. 84; 29 U.S.C.,
790.18 ‘‘Administrative practice or enforce-     Sup., 251 et seq.).
                                                   2 52 Stat. 1060, as amended; 29 U.S.C. 201 et
    ment policy.’’
790.19 ‘‘Agency of the United States.’’          seq. In the Fair Labor Standards Act, the
                                                 Congress exercised its power over interstate
RESTRICTIONS AND LIMITATIONS ON EMPLOYEE         commerce to establish basic standards with
                  SUITS                          respect to minimum and overtime wages and
                                                 to bar from interstate commerce goods in
790.20 Right of employees to sue; restric-       the production of which these standards were
    tions on representative actions.             not observed. For the nature of liabilities
790.21 Time for bringing employee suits.         under this Act, see footnote 17.
790.22 Discretion of court as to assessment        3 Sections 790.23 through 790.29 in the prior
    of liquidated damages.                       edition of this part 790 have been omitted in
  AUTHORITY: 52 Stat. 1060, as amended; 29       this revision because of their obsolescence in
U.S.C. 201 et seq.                               that they dealt with those sections of the
                                                 Act concerning activities prior to May 14,
  SOURCE: 12 FR 7655, Nov. 18, 1947, unless      1947, the effective date of the Portal-to-Por-
otherwise noted.                                 tal Act.

                                             692
Wage and Hour Division, Labor                                                              § 790.2

because the primary purpose of this              how the office representing the public
part is to indicate the effect of the Por-       interest in 6 enforcement of the law will
tal Act upon the future administration           seek to apply it. As has been the case
and enforcement of the Fair Labor                in the past with respect to other inter-
Standards Act, with which the Admin-             pretative bulletins, the Administrator
istrator of the Wage and Hour Division           will receive and consider statements
is charged under the law. The discus-            suggesting change of any interpreta-
sion of the Portal Act in this part is           tion contained in this part.
therefore directed principally to those          [12 FR 7655, Nov. 18, 1947, as amended at 35
provisions that have to do with the ap-          FR 7383, May 12, 1970]
plication of the Fair Labor Standards
Act on or after May 14, 1947.                    § 790.2 Interrelationship of the two
  (c) The correctness of an interpreta-               acts.
tion of the Portal Act, like the correct-           (a) The effect on the Fair Labor
ness of an interpretation of the Fair            Standards Act of the various provisions
Labor Standards Act, can be deter-               of the Portal Act must necessarily be
mined finally and authoritatively only           determined by viewing the two acts as
by the courts. It is necessary, however,         interelated parts of the entire statu-
for the Administrator to reach in-               tory scheme for the establishment of
formed conclusions as to the meaning             basic fair labor standards. 7 The Portal
of the law in order to enable him to             Act contemplates that employers will
carry out his statutory duties of ad-            be relieved, in certain circumstances,
ministration and enforcement. It would           from liabilities or punishments to
seem desirable also that he makes                which they might otherwise be subject
these conclusions known to persons af-           under the Fair Labor Standards Act. 8
fected by the law. 4 Accordingly, as in          But the act makes no express change in
the case of the interpretative bulletins         the national policy, declared by Con-
previously issued on various provisions          gress in section 2 of the Fair Labor
of the Fair Labor Standards Act, the             Standards Act, of eliminating labor
interpretations set forth herein are in-         conditions ‘‘detrimental to the mainte-
tended to indicate the construction of           nance of the minimum standard of liv-
the law which the Administration be-             ing necessary for health, efficiency,
lieves to be correct 5 and which will
guide him in the performance of his ad-            6 Skidmore v. Swift & Co., 323 U.S. 134. See
ministrative duties under the Fair               also Roland Electrical Co. v. Walling, 326 U.S.
Labor Standards Act, unless and until            657; United States v. American Trucking Assn.,
he is directed otherwise by authori-             310 U.S. 534; Overnight Motor Transp. Co. v.
tative rulings of the courts or con-             Missel, 316 U.S. 572.
                                                   7 As appears more fully in the following
cludes, upon reexamination of an inter-
pretation, that it is incorrect. As the          sections of this part, the several provisions
                                                 of the Portal Act relate, in pertinent part, to
Supreme Court has pointed out, such
                                                 actions, causes of action, liabilities, or pun-
interpretations provide a practical              ishments based on the nonpayment by em-
guide to employers and employees as to           ployers to their employees of minimum or
                                                 overtime wages under the provision of the
  4 See Skidmore v. Swift & Co., 323 U.S. 134;   Fair Labor Standards Act. Section 13 of the
Kirschbaum Co. v. Walling, 316 U.S. 517; Por-    Portal Act provides that the terms, ‘‘em-
tal-to-Portal Act, sec. 10.                      ployer,’’ ‘‘employee,’’ and ‘‘wage’’, when used
  5 The interpretations expressed herein are     in the Portal Act, in relation to the Fair
based on studies of the intent, purpose, and     Labor Standards Act, have the same mean-
interrelationship of the Fair Labor Stand-       ing as when used in the latter Act.
                                                   8 Portal Act, sections 1, 2, 4, 6, 9, 10, 11, 12.
ards Act and the Portal Act as evidenced by
their language and legislative history, as         Sponsors of the legislation asserted that
well as on decisions of the courts estab-        the provisions of the Portal Act do not de-
lishing legal principles believed to be appli-   prive any person of a contract right or other
cable in interpreting the two Acts. These in-    right which he may have under the common
terpretations have been adopted by the Ad-       law or under a State statute. See colloquy
ministrator after due consideration of rel-      between Senators Donnell, Hatch and Fer-
evant knowledge and experience gained in         guson, 93 Cong. Rec. 2098; colloquy between
the administration of the Fair Labor Stand-      Senators Donnell and Ferguson, 93 Cong.
ards Act of 1938 and after consultation with     Rec. 2127; statement of Representative
the Solicitor of Labor.                          Gwynne, 93 Cong. Rec. 1557.

                                             693
§ 790.3                                                       29 CFR Ch. V (7– 1– 02 Edition)

and general well-being of workers.’’               tion 14 and exemptions therefrom are to
The legislative history indicates that             be narrowly construed and limited to
the Portal Act was not intended to                 those who can meet the burden of
change this general policy. 9 The Con-             showing that they come ‘‘plainly and
gressional declaration of policy in sec-           unmistakably within (the) terms and
tion 1 of the Portal Act is explicitly di-         spirit’’ of such an exemption. 15
rected to the meeting of the existing                (b) It is clear from the legislative his-
emergency and the correction, both                 tory of the Portal Act that the major
retroactively and prospectively, of ex-            provisions of the Fair Labor Standards
isting evils referred to therein. 10 Spon-         Act remain in full force and effect, al-
sors of the legislation in both Houses of          though the application of some of them
Congress asserted that it ‘‘in no way              is affected in certain respects by the
repeals the minimum wage require-
                                                   1947 Act. The provisions of the Portal
ments and the overtime compensation
                                                   Act do not directly affect the provi-
requirements of the Fair Labor Stand-
                                                   sions of section 15(a)(1) of the Fair
ards Act’’ 11 that it ‘‘protects the le-
gitimate claims’’ under that Act, 12 and           Labor Standards Act banning ship-
that one of the objectives of the spon-            ments in interstate commerce of ‘‘hot’’
sors was to ‘‘preserve to the worker the           goods produced by employees not paid
rights he has gained under the Fair                in accordance with the Act’s require-
Labor Standards Act.’’ 13 It would                 ments, or the provisions of section 11(c)
therefore appear that the Congress did             requiring employers to keep records in
not intend by the Portal Act to change             accordance with the regulations pre-
the general rule that the remedial pro-            scribed by the Administrator. The Por-
visions of the Fair Labor Standards                tal Act does not affect in any way the
Act are to be given a liberal interpreta-          provision in section 15(a)(3) banning
                                                   discrimination against employees who
  9 See references to this policy at page 5 of     assert their rights under the Fair
the Senate Committee Report on the bill            Labor Standards Act, or the provisions
(Senate Rept. 48, 80th Cong., 1st sess.), and in   of section 12(a) of the Act banning from
statement of Senator Donnell, 93 Cong. Rec.        interstate commerce goods produced in
2177; see also statement of Senator Morse, 93      establishments in or about which op-
Cong. Rec. 2274; statement of Representative       pressive child labor is employed. The
Walter, 93 Cong. Rec. 4389.
  10 Cf. House Rept. No. 71; Senate Rept. No.
                                                   effect of the Portal Act in relation to
48; House (Conf.) Rept. No. 326, 80th Cong.,       the minimum and overtime wage re-
1st sess. (referred to hereafter as House Re-      quirements of the Fair Labor Stand-
port, Senate Report, and Conference Report);       ards Act is considered in this part in
statement of Representative Michener, 93           connection with the discussion of spe-
Cong. Rec. 4390; statement of Senator Wiley,       cific provisions of the 1947 Act.
93 Cong. Rec. 4269, 4270; statement of Rep-
resentative Gwynne, 93 Cong. Rec. 1572;            PROVISIONS RELATING TO CERTAIN AC-
statements of Senator Donnell, 93 Cong. Rec.        TIVITIES ENGAGED IN BY EMPLOYEES
2133–2135, 2176–2178; statement of Representa-
                                                    ON OR AFTER MAY 14, 1947
tive Robison, 93 Cong. Rec. 1499; Message of
the President to Congress, May 14, 1947 on
approval of the Act (93 Cong. Rec. 5281).          § 790.3   Provisions of the statute.
  11 Statements of Senator Wiley, explaining
                                                     Section 4 of the Portal Act, which re-
the conference agreement to the Senate, 93         lates to so-called ‘‘portal-to-portal’’ ac-
Cong. Rec. 4269 and 4371. See also statement
                                                   tivities engaged in by employees on or
of Senator Cooper, 93 Cong. Rec. 2295; state-
ment of Representative Robsion, 93 Cong.           after May 14, 1947, provides as follows:
Rec. 1499, 1500.                                     (a) Except as provided in subsection (b), no
  12 Statement of Representative Michener,
                                                   employer shall be subject to any liability or
explaining the conference agreement to the         punishment under the Fair Labor Standards
House of Representatives, 93 Cong. Rec. 4391.      Act of 1938, as amended, * * * on account of
See also statement of Representative
Keating, 93 Cong. Rec. 1512.
  13 Statement of Senator Cooper, 93 Cong.           14 Roland Electrical Co. v. Walling, 326 U.S.

Rec. 2300; see also statements of Senator          657; United States v. Rosenwasser, 323 U.S. 360;
Donnell, 93 Cong. Rec. 2361, 2362, 2364; state-    Brooklyn Savings Bank v. O’Neil, 324 U.S. 697.
ments of Representatives Walter and                  15 See Phillips Co. v. Walling, 324 U.S. 490;

Robsion, 93 Cong. Rec. 1496, 1498.                 Walling v. General Industries Co., 330 U.S. 545.

                                               694
Wage and Hour Division, Labor                                                            § 790.4
the failure of such employer to pay an em-        not been paid for or on account of these
ployee minimum wages, or to pay an em-            activities in accordance with the statu-
ployee overtime compensation, for or on ac-
                                                  tory standards established by the Fair
count of any of the following activities of
such employee engaged in on or after the          Labor Standards Act. 16 Where, in these
date of the enactment of this Act:                circumstances such activities are not
  (1) Walking, riding, or traveling to and        compensable by contract, custom, or
from the actual place of performance of the       practice as described in section 4, this
principal activity or activities which such       section relieves the employer from cer-
employee is employed to perform, and
                                                  tain liabilities or punishments to
  (2) Activities which are preliminary to or
postliminary to said principal activity or ac-    which he might otherwise be subject
tivities                                          under the provisions of the Fair Labor
which occur either prior to the time on any       Standards Act. 17 The primary Congres-
particular workday at which such employee         sional objectives in enacting section 4
commences, or subsequent to the time on           of the Portal Act, as disclosed by the
any particular workday at which he ceases,        statutory language and legislative his-
such principal activity or activities.            tory were:
  (b) Notwithstanding the provisions of sub-
section (a) which relieve an employer from
                                                    (1) To minimize uncertainty as to the
liability and punishment with respect to an       liabilities of employers which it was
activity, the employer shall not be so re-        felt might arise in the future if the
lieved if such activity is compensable by ei-     compensability under the Fair Labor
ther:                                             Standards Act of such preliminary or
  (1) An express provision of a written or        postliminary activities should con-
nonwritten contract in effect, at the time of
such activity, between such employee, his
                                                  tinue to be tested solely by existing
agent, or collective-bargaining representa-       criteria 18 for determining compensable
tive and his employer; or
  (2) A custom or practice in effect, at the        16 The Fair Labor Standards Act, as amend-

time of such activity, at the establishment       ed, requires the payment of the applicable
or other place where such employee is em-         minimum wage for all hours worked and
ployed, covering such activity, not incon-        overtime compensation for all hours in ex-
sistent with a written or nonwritten con-         cess of 40 in a workweek at a rate not less
tract, in effect at the time of such activity,    than one and one-half times the employees
between such employee, his agent, or collec-      regular rate of pay, unless a specific exemp-
tive-bargaining representative and his em-        tion applies.
ployer.                                             17 The failure of an employer to compensate

  (c) For the purpose of subsection (b), an ac-   employees subject to the Fair Labor Stand-
tivity shall be considered as compensable         ards Act in accordance with its minimum
under such contract provision or such cus-        wage and overtime requirements makes him
tom or practice only when it is engaged in        liable to them for the amount of their unpaid
during the portion of the day with respect to     minimum wages and unpaid overtime com-
which it is so made compensable.                  pensation together with an additional equal
  (d) In the application of the minimum           amount (subject to section 11 of the Portal-
wage and overtime compensation provisions         to-Portal Act, discussed below in § 790.22) as
of the Fair Labor Standards Act of 1938, as       liquidated damages (section 16(b) of the Act);
amended, * * * in determining the time for        and, if his Act or omission is willful, subjects
which an employer employs an employee             him to criminal penalties (section 16(a) of
with respect to walking, riding, traveling, or    the Act). Civil actions for injunction can be
other preliminary or postliminary activities      brought by the Administrator (sections 11(a)
described in subsection (a) of this section,      and 17 of the Act).
there shall be counted all that time, but only      18 Employees subject to the minimum and

that time, during which the employee en-          overtime wage provisions of the Fair Labor
gages in any such activity which is compen-       Standards Act have been held to be entitled
sable within the meaning of subsections (b)       to compensation in accordance with the stat-
and (c) of this section.                          utory standards, regardless of contrary cus-
                                                  tom or contract, for all time spent during
§ 790.4 Liability of employer; effect of          the workweek in ‘‘physical or mental exer-
    contract, custom, or practice.                tion (whether burdensome or not), controlled
                                                  or required by the employer and pursued nec-
  (a) Section 4 of the Portal Act,                essarily and primarily for the benefit of the
quoted above, applies to situations               employer and his business’’ (Tennessee Coal
where an employee, on or after May 14,            Iron & R.R. Co. v. Muscoda Local, 321 U.S. 590,
1974, has engaged in activities of the            598), as well as for all time spent in active or
kind described in this section and has                                                   Continued


                                              695
§ 790.4                                                       29 CFR Ch. V (7– 1– 02 Edition)

worktime, independently of contract,              a contract) at the place of employ-
custom, or pratice; 19 and                        ment, in effect at the time the activi-
   (2) To leave in effect, with respect to        ties are performed. The statute states
the workday proper, the interpreta-               that ‘‘the employer shall not be so re-
tions by the courts and the Adminis-              lieved’’ if such activities are so com-
trator of the requirements of the Fair            pensable; 21 it does not matter in such
Labor Standards Act with regard to                a situation that they are so-called
the compensability of activities and              ‘‘portal-to-portal’’ activities. 22
time to be included in computing hours            Accordingly, an employer who fails to
worked. 20                                        take such activities into account in
   (b) Under section 4 of the Portal Act,         paying compensation to an employee
an employer who fails to pay an em-               who is subject to the Fair Labor Stand-
ployee minimum wages or overtime                  ards Act is not protected from liability
compensation for or on account of ac-             or punishment in either of the fol-
tivities engaged in by such employee is           lowing situations.
relieved from liability or punishment               (1) Where, at the time such activities
therefor if, and only if, such activities         are performed there is a contract,
meet the following three tests:                   whether written or not, in effect be-
   (1) They constitute ‘‘walking, riding,         tween the employer and the employee
or traveling’’ of the kind described in           (or the employee’s agent or collective-
the statute, or other activities ‘‘pre-           bargaining representative), and by an
liminary’’ or ‘‘postliminary’’ to the             express provision of this contract the
‘‘principal activity or activities’’ which        activities are to be paid for; 23 or
the employee is employed to perform;                (2) Where, at the time such activities
and                                               are performed, there is in effect at the
   (2) They take place before or after            place of employment a custom or prac-
the performance of all the employee’s             tice to pay for such activities, and this
‘‘principal activities’’ in the workday;          custom or practice is not inconsistent
and                                               with any applicable contract between
   (3) They are not compensable, during           such parties. 24
the portion of the day when they are
engaged in, by virtue of any contract,            In applying these principles, it should
custom, or practice of the kind de-               be kept in mind that under the provi-
scribed in the statute.                           sions of section 4(c) of the Portal-to-
   (c) It will be observed that section 4         Portal     Act,     ‘‘preliminary’’   or
of the Portal Act relieves an employer            ‘‘postliminary’’ activities which take
of liability or punishment only with re-          place outside the workday ‘‘before the
spect to activities of the kind de-               morning whistle’’ or ‘‘after the evening
scribed, which have not been made                 whistle’’ are, for purposes of the stat-
compensable by a contract or by a cus-            ute, not to be considered compensable
tom or practice (not inconsistent with            by a contract, custom or practice if
                                                  such contract, custom or practice
                                                  makes them compensable only during
inactive duties which such employees are en-      some other portion of the day. 25
gaged to perform (Armour & Co. v. Wantock,
323 U.S. 126, 132–134; Skidmore v. Swift & Co.,   [12 FR 7655, Nov. 18, 1947, as amended at 35
323, U.S. 134, 136–137).                          FR 7383, May 12, 1970]
  19 Portal Act, section 1: Senate Report, pp.

41, 42, 46–49; Conference Report, pp. 12, 13;       21 Section  4(b) of the Act (quoted in § 790.3).
statements of Senator Wiley, 93 Cong. Rec.          22 Conference   Report, pp. 12, 13; colloquy
2084, 4269–4270; statements of Senator            between Senators Donnell and Hakes, 93
Donnell, 93 Cong. Rec. 2089, 2121, 2122, 2181,    Cong. Rec. 2181–2182; colloquy between Sen-
2182, 2362, 2363; statements of Senator Coo-      ators Cooper and McGrath, 93 Cong. Rec.
per, 93 Cong. Rec. 2292–2300.                     2297–2298, cf. colloquy between Senators
  20 Senate Report, pp. 46–49; Conference Re-
                                                  Donnell and Hawkes, 93 Cong. Rec. 2179.
port, pp. 12, 13; statements of Senator              23 Statements of Senator Donnell, 93 Cong.
Donnell, 93 Cong. Rec. 2181, 2182, 2362; state-   Rec. 2179, 2181, 2182; statements of Senator
ments of Senator Cooper, 93 Cong. Rec. 2294,      Cooper, 93 Cong. Rec. 2297, 2298, 2299.
2296, 2297, 2299, 2300; statement of Represent-      24 Statements of Senator Donnell, 93 Cong.

ative Gwynne, 93 Cong. Rec. 4388; statements      Rec. 2181, 2182.
of Senator Wiley, 93 Cong. Rec. 2084, 4269–          25 Conference Report, pp. 12, 13. See also

4270.                                             § 790.12.

                                              696
Wage and Hour Division, Labor                                                            § 790.5

§ 790.5 Effect of Portal-to-Portal Act on           employee engages in such activities
     determination of hours worked.                 thus compensable by contract, custom,
   (a) In the application of the min-               or practice. 31 But where, apart from
imum wage and overtime compensa-                    the Portal Act, time spent in such an
tion provisions of the Fair Labor                   activity would not be time worked
Standards Act to activities of employ-              within the meaning of the Fair Labor
ees on or after May 14, 1947, the deter-            Standards Act, although made compen-
mination of hours worked is affected                sable by contract, custom, or practice,
by the Portal Act only to the extent                such compensability will not make it
stated in section 4(d). This section re-            time worked under section 4(d) of the
quires that:                                        Portal Act.
  . . . in determining the time for which an          (b) The operation of section 4(d) may
employer employs an employee with respect           be illustrated by the common situation
to walking, riding, traveling or other pre-         of underground miners who spend time
liminary or postliminary activities described       in traveling between the portal of the
(in section 4(a)) there shall be counted all
                                                    mine and the working face at the be-
that time, but only that time, during which
the employee engages in any such activity           ginning and end of each workday. Be-
which is compensable (under contract, cus-          fore enactment of the Portal Act, time
tom, or practice within the meaning of sec-         thus spent constituted hours worked.
tion 4 (b), (c)). 26                                Under the law as changed by the Portal
This provision is thus limited to the               Act, if there is a contract between the
determination of whether time spent in              employer and the miners calling for
such ‘‘preliminary’’ or ‘‘postliminary’’            payment for all or a part of this travel,
activities, performed before or after               or if there is a custom or practice to
the employee’s ‘‘principal activities’’             the same effect of the kind described in
for the workday 27 must be included or              section 4, the employer is still required
excluded in computing time worked. 28               to count as hours worked, for purposes
If time spent in such an activity would             of the Fair Labor Standards Act, all of
be time worked within the meaning of                the time spent in the travel which is so
the Fair Labor Standards Act if the                 made compensable. 32 But if there is no
Portal Act had not been enacted, 29                 such contract, custom, or practice,
then the question whether it is to be               such time will be excluded in com-
included or excluded in computing                   puting worktime for purposes of the
hours worked under the law as changed               Act. And under the provisions of sec-
by this provision depends on the com-               tion 4(c) of the Portal Act, 33 if a con-
pensability of the activity under the               tract, custom, or practice of the kind
relevant contract, custom, or practice
                                                    described makes such travel compen-
applicable to the employment. Time
                                                    sable only during the portion of the
occupied by such an activity is to be
excluded in computing the time                      day before the miners arrive at the
worked if, when the employee is so en-              working face and not during the por-
gaged, the activity is not compensable              tion of the day when they return from
by a contract, custom, or practice                  the working face to the portal of the
within the meaning of section 4; other-             mine, the only time spent in such trav-
wise it must be included as worktime                el which the employer is required to
in calculating minimum or overtime                  count as hours worked will be the time
wages due. 30 Employers are not re-                 spent in traveling from the portal to
lieved of liability for the payment of              the working face at the beginning of
minimum wages or overtime com-                      the workday.
pensation for any time during which an
                                                      31 Conference   Report, p. 10.
  26 The full text of section 4 of the Act is set     32 Cf.colloquies between Senators Donnell
forth in § 790.3.                                   and Hawkes, 93 Cong. Rec. 2179, 2181, 2182;
  27 See § 709.6. Section 4(d) makes plain that     colloquy between Senators Ellender and Coo-
subsections (b) and (c) of section 4 likewise       per, 83 Cong. Rec. 2296–2297; colloquy between
apply only to such activities.                      Senators McGrath and Cooper, 93 Cong. Rec.
  28 Conference Report, p. 13.                      2297–2298. See also Senate Report, p. 48.
  29 See footnote 18.                                 33 See § 790.3 and Conference Report pp. 12,
  30 See Conference Report, pp. 10, 13.             13. See also Senate Report, p. 48.

                                                697
§ 790.6                                                      29 CFR Ch. V (7– 1– 02 Edition)

§ 790.6 Periods within the ‘‘workday’’            without reference to the Portal Act, 36
     unaffected.                                  which is concerned with this question
   (a) Section 4 of the Portal Act does           only as it relates to time spent outside
not affect the computation of hours               the ‘‘workday’’ in activities of the kind
worked within the ‘‘workday’’ proper,             described in section 4. 37
roughly described as the period ‘‘from              (b) ‘‘Workday’’ as used in the Portal
whistle to whistle,’’ and its provisions          Act means, in general, the period be-
have nothing to do with the compensa-             tween the commencement and comple-
bility under the Fair Labor Standards             tion on the same workday of an em-
Act of any activities engaged in by an            ployee’s principal activity or activi-
employee during that period. 34 Under             ties. It includes all time within that
the provisions of section 4, one of the           period whether or not the employee en-
conditions that must be present before            gages in work throughout all of that
‘‘preliminary’’ or ‘‘postliminary’’ ac-           period. For example, a rest period or a
tivities are excluded from hours
                                                  lunch period is part of the ‘‘workday’’,
worked is that they ‘occur either prior
to the time on any particular workday             and section 4 of the Portal Act there-
at which the employee commences, or               fore plays no part in determining
subsequent to the time on any par-                whether such a period, under the par-
ticular workday at which he ceases’               ticular circumstances presented, is or
the principal activity or activities              is not compensable, or whether it
which he is employed to perform. Ac-              should be included in the computation
cordingly, to the extent that activities          of hours worked. 38 If an employee is re-
engaged in by an employee occur after             quired to report at the actual place of
the employee commences to perform                 performance of his principal activity at
the first principal activity on a par-            a certain specific time, his ‘‘workday’’
ticular workday and before he ceases              commences at the time he reports
the performance of the last principal             there for work in accordance with the
activity on a particular workday, the             employer’s requirement, even though
provisions of that section have no ap-            through a cause beyond the employee’s
plication. Periods of time between the            control, he is not able to commence
commencement of the employee’s first              performance of his productive activi-
principal activity and the completion
                                                  ties until a later time. In such a situa-
of his last principal activity on any
                                                  tion the time spent waiting for work
workday must be included in the com-
putation of hours worked to the same              would be part of the workday, 39 and
extent as would be required if the Por-           section 4 of the Portal Act would not
tal Act had not been enacted. 35 The              affect its inclusion in hours worked for
principles    for   determining   hours           purposes of the Fair Labor Standards
worked within the ‘‘workday’’ proper              Act.
will continue to be those established             [12 FR 7655, Nov. 18, 1947, as amended at 35
under the Fair Labor Standards Act                FR 7383, May 12, 1970]

  34 The report of the Senate Judiciary Com-

mittee states (p. 47), ‘‘Activities of an em-        36 The  determinations of hours worked
ployee which take place during the workday        under the Fair Labor Standards Act, as
are * * * not affected by this section (section   amended is discussed in part 785 of this chap-
4 of the Portal-to-Portal Act, as finally en-     ter.
acted) and such activities will continue to be       37 See statement of Senator Wiley explain-
compensable or not without regard to the          ing the conference agreement to the Senate,
provisions of this section.’’                     93 Cong. Rec. 3269. See also the discussion in
  35 See Senate Report, pp. 47, 48; Conference
                                                  §§ 790.7 and 790.8.
Report, p. 12; statement of Senator Wiley,           38 Senate Report, pp. 47, 48. Cf. statement of
explaining the conference agreement to the
Senate, 93 Cong. Rec. 4269 (also 2084, 2085);     Senator Wiley explaining the conference
statement of Representative Gwynne, ex-           agreement to the Senate, 93 Cong. Rec. 4269;
plaining the conference agreement to the          statement of Senator Donnell, 93 Cong. Rec.
House of Representatives, 93 Cong. Rec. 4388;     2362; statements of Senator Cooper, 93 Cong.
statements of Senator Cooper, 93 Cong. Rec.       Rec. 2297, 2298.
2293–2294, 2296–2300; statements of Senator          39 Colloquy between Senators Cooper and

Donnell, 93 Cong. Rec. 2181, 2182, 2362.          McGrath, 93 Cong. Rec. 2297, 2298.

                                              698
Wage and Hour Division, Labor                                                          § 790.7

§ 790.7 ‘‘Preliminary’’                and       the words ‘‘postliminary activity’’
     ‘‘postliminary’’ activities.                means an activity engaged in by an
   (a) Since section 4 of the Portal Act         employee after the completion of his
applies only to situations where em-             ‘‘principal’’ activity or activities. No
ployees engage in ‘‘preliminary’’ or             categorical list of ‘‘preliminary’’ and
‘‘postliminary’’ activities outside the          ‘‘postliminary’’ activities except those
workday proper, it is necessary to con-          named in the Act can be made, since
sider what activities fall within this           activities which under one set of cir-
description. The fact that an employee           cumstances may be ‘‘preliminary’’ or
devotes some of his time to an activity          ‘‘postliminary’’ activities, may under
                                                 other conditions be ‘‘principal’’ activi-
of this type is, however, not a suffi-
                                                 ties. The following ‘‘preliminary’’ or
cient reason for disregarding the time
                                                 ‘‘postliminary’’ activities are expressly
devoted to such activity in computing
                                                 mentioned in the Act: ‘‘Walking,
hours worked. If such time would oth-
                                                 riding, or traveling to or from the ac-
erwise be counted as time worked
                                                 tual place of performance of the prin-
under the Fair Labor Standards Act,
                                                 cipal activity or activities which (the)
section 4 may not change the situation.
                                                 employee is employed to perform.’’ 43
Whether such time must be counted or
                                                    (c) The statutory language and the
may be disregarded, and whether the              legislative history indicate that the
relief from liability or punishment af-          ‘‘walking, riding or traveling’’ to which
forded by section 4 of the Portal Act is         section 4(a) refers is that which occurs,
available to the employer in such a sit-         whether on or off the employer’s prem-
uation will depend on the compensa-              ises, in the course of an employee’s or-
bility of the activity under contract,           dinary daily trips between his home or
custom, or practice within the meaning           lodging and the actual place where he
of that section. 40 On the other hand,           does what he is employed to do. It does
the criteria described in the Portal Act         not, however, include travel from the
have no bearing on the compensability            place of performance of one principal
or the status as worktime under the              activity to the place of performance of
Fair Labor Standards Act of activities           another, nor does it include travel dur-
that     are    not    ‘‘preliminary’’  or       ing the employee’s regular working
‘‘postliminary’’ activities outside the          hours. 44 For example, travel by a re-
workday. 41 And even where there is a            pairman from one place where he per-
contract, custom, or practice to pay for         forms repair work to another such
time spent in such a ‘‘preliminary’’ or          place, or travel by a messenger deliv-
‘‘postliminary’’ activity, section 4(d) of       ering messages, is not the kind of
the Portal Act does not make such                ‘‘walking, riding or traveling’’ de-
time hours worked under the Fair                 scribed in section 4(a). Also, where an
Labor Standards Act, if it would not be          employee travels outside his regular
so counted under the latter Act                  working hours at the direction and on
alone. 42                                        the business of his employer, the travel
   (b) The words ‘‘preliminary activity’’
mean an activity engaged in by an em-               43 Portal Act, subsections 4(a), 4(d). See
ployee before the commencement of his            also Conference Report, p. 13; statement of
‘‘principal’’ activity or activities, and        Senator Donnell, 93 Cong. Rec. 2181, 2362.
                                                    44 These conclusions are supported by the
   40 See Conference Report. pp. 10, 12, 13;     limitation, ‘‘to and from the actual place of
statements of Senator Donnell, 93 Cong. Rec.     performance of the principal activity or ac-
2178–2179, 2181, 2182; statements of Senator     tivities which (the) employee is employed to
Cooper, 93 Cong. Rec. 2297, 2298. See also       perform,’’ which follows the term ‘‘walking,
§§ 790.4 and 790.5.                              riding or traveling’’ in section 4(a), and by
   41 See Conference Report, p. 12; Senate Re-   the additional limitation applicable to all
port, pp. 47, 48; statement of Senator Wiley,    ‘‘preliminary’’ and ‘‘postliminary’’ activities
explaining the conference agreement to the       to the effect that the Act may affect them
Senate, 93 Cong. Rec. 4269; statement of Rep-    only if they occur ‘‘prior to’’ or ‘‘subsequent
resentative Gwynne, explaining the con-          to’’ the workday. See, in this connection the
ference agreement to the House of Rep-           statements of Senator Donnell, 93 Conf. Rec.
resentatives, 93 Cong. Rec. 4388. See also       2121, 2181, 2182, 2363; statement of Senator
§ 790.6.                                         Cooper, 93 Cong. Rec. 2297. See also Senate
   42 See § 790.5(a).                            Report, pp. 47, 48.

                                             699
§ 790.7                                                      29 CFR Ch. V (7– 1– 02 Edition)

would not ordinarily be ‘‘walking,                    (e) The report of the Senate Com-
riding, or traveling’’ of the type re-             mittee on the Judiciary (p. 47) de-
ferred to in section 4(a). One example             scribes the travel affected by the stat-
would be a traveling employee whose                ute as ‘‘Walking, riding, or traveling to
duties require him to travel from town             and from the actual place of perform-
to town outside his regular working                ance of the principal activity or activi-
hours; another would be an employee                ties within the employer’s plant, mine,
who has gone home after completing                 building, or other place of employ-
his day’s work but is subsequently                 ment, irrespective of whether such
called out at night to travel a substan-           walking, riding, or traveling occur on
tial distance and perform an emer-                 or off the premises of the employer or
gency job for one of his employer’s cus-           before or after the employee has
tomers. 45 In situations such as these,            checked in or out.’’ The phrase, actual
where an employee’s travel is not of               place of performance,’’ as used in sec-
the kind to which section 4(a) of the              tion 4(a), thus emphasizes that the or-
Portal Act refers, the question whether            dinary travel at the beginning and end
the travel time is to be counted as                of the workday to which this section
worktime under the Fair Labor Stand-               relates includes the employee’s travel
ards Act will continue to be deter-                on the employer’s premises until he
mined by principles established under              reaches his workbench or other place
this Act, without reference to the Por-            where he commences the performance
                                                   of the principal activity or activities,
tal Act. 46
                                                   and the return travel from that place
  (d) An employee who walks, rides or
                                                   at the end of the workday. However
otherwide travels while performing ac-             where an employee performs his prin-
tive duties is not engaged in the activi-          cipal activity at various places (com-
ties described in section 4(a). An illus-          mon examples would be a telephone
tration of such travel would be the car-           lineman, a ‘‘trouble-shooter’’ in a man-
rying by a logger of a portable power              ufacturing plant, a meter reader, or an
saw or other heavy equipment (as dis-              exterminator) the travel between those
tinguished from ordinary hand tools)               places is not travel of the nature de-
on his trip into the woods to the cut-             scribed in this section, and the Portal
ting area. In such a situation, the                Act has not significance in determining
walking, riding, or traveling is not               whether the travel time should be
segreable from the simultaneous per-               counted as time worked.
formance of his assigned work (the car-               (f) Examples of walking, riding, or
rying of the equipment, etc.) and it               traveling which may be performed out-
does not constitute travel ‘‘to and from           side the workday and would normally
the actual place of performance’’ of the           be     considered    ‘‘preliminary’’   or
principal activities he is employed to             ‘‘postliminary’’ activities are (1) walk-
perform. 47                                        ing or riding by an employee between
                                                   the plant gate and the employee’s
   45 The report of the Senate Judiciary Com-
                                                   lathe, workbench or other actual place
mittee (p. 48) emphasized that this section of     of performance of his principal activity
the Act ‘‘does not attempt to cover by spe-        or activities; (2) riding on buses be-
cific language that many thousands of situa-
                                                   tween a town and an outlying mine or
tions that do not readily fall within the pat-
tern of the ordinary workday.’’                    factory where the employee is em-
   46 These principles are discussed in part 785   ployed; and (3) riding on buses or trains
of this chapter.                                   from a logging camp to a particular
   47 Senator Cooper, after explaining that the    site at which the logging operations
‘‘principal’’ activities referred to include ac-   are actually being conducted. 48
tivities which are an integral part of a              (g) Other types of activities which
‘‘principal’’ activity (Senate Report, pp. 47,     may be performed outside the workday
48), that is, those which ‘‘are indispensable
to the performance of the productive work,’’
summarized this provision as it appeared in        for which the worker is employer.’’ 93 Cong.
the Senate Bill by stating: ‘‘We have clearly      Rec. 2299.
eliminated from compensation walking,                48 See Senate Report, p. 47; statements of

traveling, riding, and other activities which      Senator Donnell, 93 Cong. Rec. 2121, 2182,
are not an integral part of the employment         3263.

                                               700
Wage and Hour Division, Labor                                                              § 790.8

and, when performed under the condi-               § 790.8 ‘‘Principal’’ activities.
tions normally present, would be con-
                                                      (a) An employer’s liabilities and obli-
sidered         ‘‘preliminary’’         or
                                                   gations under the Fair Labor Stand-
‘‘postliminary’’     activities,   include
                                                   ards Act with respect to the ‘‘prin-
checking in and out and waiting in line
                                                   cipal’’ activities his employees are em-
to do so, changing clothes, washing up
                                                   ployed to perform are not changed in
or showering, and waiting in line to re-
                                                   any way by section 4 of the Portal Act,
ceive pay checks. 49
                                                   and time devoted to such activities
   (h) As indicated above, an activity
                                                   must be taken into account in com-
which     is    a     ‘‘preliminary’’   or
‘‘postliminary’’ activity under one set            puting hours worked to the same ex-
of circumstances may be a principal                tent as it would if the Portal Act had
activity under other conditions. 50 This           not been enacted. 53 But before it can be
may be illustrated by the following ex-            determined whether an activity is
ample: Waiting before the time estab-              ‘‘preliminary or postliminary to (the)
lished for the commencement of work                principal activity or activities’’ which
would be regarded as a preliminary ac-             the employee is employed to perform,
tivity when the employee voluntarily               it is generally necessary to determine
arrives at his place of employment ear-            what are such ‘‘principal’’ activities. 54
lier than he is either required or ex-             The use by Congress of the plural form
pected to arrive. Where, however, an               ‘‘activities’’ in the statute makes it
employee is required by his employer               clear that in order for an activity to be
to report at a particular hour at his              a ‘‘principal’’ activity, it need not be
workbench or other place where he per-             predominant in some way over all
forms his principal activity, if the em-           other activities engaged in by the em-
ployee is there at that hour ready and             ployee in performing his job; 55 rather,
willing to work but for some reason be-            an employee may, for purposes of the
yond his control there is no work for              Portal-to-Portal Act be engaged in sev-
him to perform until some time has                 eral ‘‘principal’’ activities during the
elapsed, waiting for work would be an              workday. The ‘‘principal’’ activities re-
integral part of the employee’s prin-              ferred to in the statute are activities
cipal activities. 51 The difference in the         which the employee is ‘‘employed to
two situations is that in the second the           perform’’; 56 they do not include non-
employee was engaged to wait while in              compensable ‘‘walking, riding, or trav-
the first the employee waited to be en-            eling’’ of the type referred to in section
gaged. 52                                          4 of the Act. 57 Several guides to deter-
[12 FR 7655, Nov. 18, 1947, as amended at 35       mine what constitute ‘‘principal activi-
FR 7383, May 12, 1970]                             ties’’ was suggested in the legislative
                                                   debates. One of the members of the
   49 See Senate Report p. 47. Washing up after

work, like the changing of clothes, may in            53 See §§ 790.4 through 790.6 of this bulletin

certain situations be so directly related to       and part 785 of this chapter, which discusses
the specific work the employee is employed         the principles for determining hours worked
to perform that it would be regarded as an         under the Fair Labor Standards Act, as
integral part of the employee’s ‘‘principal        amended.
activity’’. See colloquy between Senators             54 Although     certain ‘‘preliminary’’ and
Cooper and McGrath, 93 Cong. Rec. 2297–2298.       ‘‘postliminary’’ activities are expressly men-
See also paragraph (h) of this section and         tioned in the statute (see § 790.7(b)), they are
§ 790.8(c). This does not necessarily mean,        described with reference to the place where
however, that travel between the washroom          principal activities are performed. Even as
or clothes-changing place and the actual           to these activities, therefore, identification
place of performance of the specific work the      of certain other activities as ‘‘principal’’ ac-
employee is employed to perform, would be          tivities is necessary.
excluded from the type of travel to which             55 Cf. Edward F. Allison Co., Inc. v. Commis-

section 4(a) refers.                               sioner of Internal Revenue, 63 F. (2d) 553
   50 See paragraph (b) of this section. See       (C.C.A. 8, 1933).
also footnote 49.                                     56 Cf. Armour & Co. v. Wantock, 323 U.S. 126,
   51 Colloquy between Senators Cooper and         132–134; Skidmore v. Swift & Co., 323 U.S. 134,
McGrath, 93 Cong. Rec. 2298.                       136–137.
   52 See Skidmore v. Swift & Co., 323 U.S. 134,      57 See statement of Senator Cooper, 93

7 WHR 1165.                                        Cong. Rec. 2297.

                                               701
§ 790.8                                                     29 CFR Ch. V (7– 1– 02 Edition)

conference committee stated to the                 (2) In the case of a garment worker in
House of Representatives that ‘‘the re-          a textile mill, who is required to report
alities of industrial life,’’ rather than        30 minutes before other employees re-
arbitrary standards, ‘‘are intended to           port to commence their principal ac-
be applied in defining the term ‘prin-           tivities, and who during such 30 min-
cipal activity or activities’,’’ and that        utes distributes clothing or parts of
these words should ‘‘be interpreted              clothing at the work-benches of other
with due regard to generally estab-              employees and gets machines in readi-
lished compensation practices in the             ness for operation by other employees,
particular industry and trade.’’ 58 The          such activities are among the principal
legislative history further indicates            activities of such employee.
that Congress intended the words
‘‘principal activities’’ to be construed         Such preparatory activities, which the
liberally in the light of the foregoing          Administrator has always regarded as
principles to include any work of con-           work and as compensable under the
sequence performed for an employer,              Fair Labor Standards Act, remain so
no matter when the work is per-                  under the Portal Act, regardless of con-
formed. 59 A majority member of the              trary custom or contract. 63
committee which introduced this lan-               (c) Among the activities included as
guage into the bill explained to the             an integral part of a principal activity
Senate that it was considered ‘‘suffi-           are those closely related activities
ciently broad to embrace within its              which are indispensable to its perform-
terms such activities as are indispen-           ance. 64 If an employee in a chemical
sable to the performance of productive           plant, for example, cannot perform his
work.’’ 60                                       principal activities without putting on
   (b) The term ‘‘principal activities’’         certain clothes, 65 changing clothes on
includes all activities which are an in-         the employer’s premises at the begin-
tegral part of a principal activity. 61          ning and end of the workday would be
Two examples of what is meant by an              an integral part of the employee’s prin-
integral part of a principal activity are        cipal activity. 66 On the other hand, if
found in the Report of the Judiciary
Committee of the Senate on the Por-                63 Statement of Senator Cooper, 93 Cong.
tal-to-Portal Bill. 62 They are the fol-
                                                 Rec. 2297; colloquy between Senators Bar-
lowing:                                          kley and Cooper, 93 Cong. Rec. 2350. The fact
   (1) In connection with the operation          that a period of 30 minutes was mentioned in
of a lathe an employee will frequently           the second example given by the committee
at the commencement of his workday               does not mean that a different rule would
oil, grease or clean his machine, or in-         apply where such preparatory activities take
stall a new cutting tool. Such activi-           less time to perform. In a colloquy between
ties are an integral part of the prin-           Senators McGrath and Cooper, 93 Cong. Rec.
                                                 2298, Senator Cooper stated that ‘‘There was
cipal activity, and are included within
                                                 no definite purpose in using the words ‘30
such term.                                       minutes’ instead of 15 or 10 minutes or 5 min-
                                                 utes or any other number of minutes.’’ In
  58 Remarks of Representative Walter, 93        reply to questions, he indicated that any
Cong. Rec. 4389. See also statements of Sen-     amount of time spent in preparatory activi-
ator Cooper, 93 Cong. Rec. 2297, 2299.           ties of the types referred to in the examples
  59 See statements of Senator Cooper, 93        would be regarded as a part of the employ-
Cong. Rec. 2296–2300. See also Senate Report,    ee’s principal activity and within the com-
p. 48, and the President’s message to Con-       pensable workday. Cf. Anderson v. Mt.
gress on approval of the Portal Act, May 14,     Clemens Pottery Co., 328 U.S. 680, 693.
1947 (93 Cong. Rec. 5281).                         64 See statements of Senator Cooper, 93
  60 See statement of Senator Cooper, 93         Cong. Rec. 2297–2299, 2377; colloquy between
Cong. Rec. 2299.                                 Senators Barkley and Cooper, 93 Cong. Rec.
  61 Senate Report, p. 48; statements of Sen-    2350.
ator Cooper, 93 Cong. Rec. 2297–2299.              65 Such a situation may exist where the
  62 As stated in the Conference Report (p.      changing of clothes on the employer’s prem-
12), by Representative Gwynne in the House       ises is required by law, by rules of the em-
of Representatives (93 Cong. Rec. 4388) and      ployer, or by the nature of the work. See
by Senator Wiley in the Senate (93 Cong.         footnote 49.
Rec. 4371), the language of the provision here     66 See colloquy between Senators Cooper

involved follows that of the Senate bill.        and McGrath, 93 Cong. Rec. 2297–2298.

                                             702
Wage and Hour Division, Labor                                                       § 790.10

changing clothes is merely a conven-             explicit terms or identifying them
ience to the employee and not directly           through any appropriate language.
related to his principal activities, it          Such a provision clearly falls within
would be considered as a ‘‘preliminary’’         the statutory description. 72 The exist-
or ‘‘postliminary’’ activity rather than         ence or nonexistence of an express pro-
a    principal   part   of    the   activ-       vision making an activity compensable
ity. 67 However,   activities    such   as       is more difficult to determine in the
checking in and out and waiting in line          case of a nonwritten contract since
to do so would not ordinarily be re-             there may well be conflicting recollec-
garded as integral parts of the prin-            tions as to the exact terms of the
cipal activity or activities. 67                 agreement. The words ‘‘compensable by
[12 FR 7655, Nov, 18, 1947, as amended at 35     an express provision’’ indicate that
FR 7383, May 12, 1970]                           both the intent of the parties to con-
                                                 tract with respect to the activity in
§ 790.9 ‘‘Compensable * * * by an ex-            question and their intent to provide
     press provision of a written or non-        compensation for the employee’s per-
     written contract.’’                         formance of the activity must satisfac-
   (a) Where an employee engages in a            torily appear from the express terms of
‘‘preliminary’’ or ‘‘postliminary’’ ac-          the agreement.
tivity of the kind described in section             (d) An activity of an employee is not
4(a) of the Portal Act and this activity         ‘‘compensable by * * * a written or
is ‘‘compensable * * * by an express             nonwritten contract’’ within the mean-
provision of a written or nonwritten             ing of section 4(b) of the Portal Act un-
contract’’ applicable to the employ-             less the contract making the activity
ment, section 4 does not operate to re-          compensable is one ‘‘between such em-
lieve the employer of liability or pun-          ployee, 72 his agent, or collective-bar-
ishment under the Fair Labor Stand-              gaining representative and his em-
ards Act with respect to such activ-             ployer.’’ 73 Thus, a provision in a con-
ity, 68 and does not relieve the em-             tract between a government agency
ployer of any obligation he would oth-           and the employer, relating to com-
erwise have under that Act to include            pensation of the contractor’s employ-
time spent in such activity in com-              ees, would not in itself establish the
puting hours worked. 69                          compensability by ‘‘contract’’ of an ac-
   (b) The word ‘‘compensable,’’ is used         tivity, for purposes of section 4.
in subsections (b), (c), and (d) of section
4 without qualification. 70 It is apparent       § 790.10 ‘‘Compensable * * * by a cus-
from these provisions that ‘‘compen-                 tom or practice.’’
sable’’ as used in the statute, means               (a)     A      ‘‘preliminary’’      or
compensable in any amount. 71                    ‘‘postliminary’’ activity of the type de-
   (c) The phrase ‘‘compensable by an            scribed in section 4(a) of the Portal Act
express provision of a written or non-           may be ‘‘compensable’’ within the
written contract’’ in section 4(b) of the        meaning of section 4(b), by a custom or
Portal Act offers no difficulty where a          practice as well as by a contract. If it
written contract states that compensa-           is so compensable, the relief afforded
tion shall be paid for the specific ac-          by section 4 is not available to the em-
tivities in question, naming them in             ployer with respect to such activity, 74
                                                 and section 4(d) does not operate to ex-
  67 See Senate Report, p. 47; statements of
                                                 clude the time spent in such activity
Senator Donnell, 93 Cong. Rec. 2305–2306,        from hours worked under the Fair
2362; statements of Senator Cooper, 93 Cong.
Rec. 2296–2297, 2298.
  68 See § 790.4.                                  72 See colloquy between Senators Donnell
  69 See §§ 790.5 and 790.7.                     and Lodge, 93 Cong. Rec. 2178; colloquies be-
  70 The word is also so used throughout sec-    tween Senators Donnell and Hawkes, 93
tion 2 of the Act which relates to past          Cong. Rec. 2179, 2181–2182.
claims. See §§ 790.28–790.25.                      73 The terms ‘‘employee’’ and ‘‘employer’’
  71 Cf. Conference Report, pp. 9, 10, 12, 13;   have the same meaning as when used in the
message of the President to the Congress on      Fair Labor Standards Act. Portal-to-Portal
approval of the Portal-to-Portal Act, May 14,    Act, section 13(a).
1947 (93 Cong. Rec. 5281).                         74 See § 790.4.



                                             703
§ 790.10                                                    29 CFR Ch. V (7– 1– 02 Edition)

Labor Standards Act. 75 Accordingly, in           of Representatives indicated that the
the event that no ‘‘express provision of          intention was not only ‘‘to protect
a written or nonwritten contract’’                every collective bargaining agreement
makes compensable the activity in                 about these activities’’ but ‘‘to protect
question, it is necessary to determine            the agreement between one workman
whether the activity is made compen-              and his employer’’ and ‘‘every practice
sable by a custom or practice, not in-            or custom which we assume must have
consistent with such a contract, in ef-           entered into the minds of the people
fect at the establishment or other                when they made the contract.’’ 79
place where the employee was em-
                                                     (d) The words, ‘‘custom or practice,’’
ployed. 76
   (b) The meaning of the word ‘‘com-             as used in the Portal Act, do not refer
pensable’’ is the same, for purposes of           to industry custom or the habits of the
the statute, whether a contract or a              community which are familiar to the
custom or practice is involved. 77                people; these words are qualified by the
   (c) The phrase, ‘‘custom or practice,’’        phrase ‘‘in effect * * * at the establish-
is one which, in common meaning, is               ment or other place where such em-
rather broad in scope. The meaning of             ployee was employed.’’ The compensa-
these words as used in the Portal Act is          bility of an activity under custom or
not stated in the statute; it must be             practice, for purposes of this Act, is
ascertained from their context and                tested by the custom or the practice at
from other available evidence of the              the ‘‘particular place of business,’’
Congressional intent, with such aid as            ‘‘plant,’’ ‘‘mine,’’ ‘‘factory,’’ ‘‘forest,’’
may be had from the many judicial de-             etc. 80
cisions interpreting the words ‘‘cus-                (e) ‘‘The custom or practice’’ by
tom’’ and ‘‘practice’’ as used in other
                                                  which compensability of an activity is
connections. Although the legislative
                                                  tested under the statute is one ‘‘cov-
history casts little light on the precise
limits of these terms, it is believed             ering such activity.’’ Thus, a custom or
that the Congressional reference to               practice to pay for washing up in the
contract, custom or practice was a de-            plant after the end of the workday, for
liberate use of non-technical words               example, would not necessarily estab-
which are commonly understood and                 lish the compensability of walking
broad enough to cover every normal                time thereafter from the washroom in
situation under which an employee                 the plant to the plant gate. It is
works or an employer for compensa-                enough, however, if there is a custom
tion. 78 Accordingly, ‘‘custom’’ and              or practice covering ‘‘such activity’’;
‘‘practice,’’ as used in section 4(b) of          there is no provision, as there is with
the Portal Act, may be said to be de-             regard to contracts, that the custom or
scriptive generally of those situations           practice be one ‘‘between such em-
where an employer, without being com-             ployee, his agent, or collective-bar-
pelled to do so by an express provision           gaining representative, and his em-
of a contract, has paid employees for             ployer.’’ 81
certain activities performed. One of the
                                                     (f) Another qualification of the ‘‘cus-
sponsors of the legislation in the House
                                                  tom or practice’’ referred to in the
 75 See
                                                  statute is that it be ‘‘not inconsistent
         §§ 790.5 and 790.7.
 76 See  Senate Report, p. 49.
                                                  with a written or non-written con-
  The same is true with respect to the activi-    tract’’ of the kind mentioned therein.
ties referred to in section 2 of the Portal Act   If the contract is silent on the question
in an action or proceeding relating to activi-    of compensability of the activity, a
ties performed before May 14, 1947. See Sen-      custom or practice to pay for it would
ate Report, p. 45. See also § 790.23.
  77 See § 790.9(b).
  78 See colloquy between Senators Donnell
                                                    79 Statements of Representative Gwynne, 93
and Tydings, 93 Cong. Rec. 2125, 2126; col-
loquy between Senators Donnell, Lodge, and        Cong. Rec. 1566.
                                                    80 Senate Report, p. 45; colloquy between
Hawkes, 93 Cong. Rec. 2178, 2179; colloquy be-
tween Senators Donnell and Hawkes, 93             Senators Donnell and Hawkes, 93 Cong. Rec.
Cong. Rec. 2181, 2182. Statements of Senator      2179.
Cooper, 93 Cong. Rec. 2293.                         81 See § 790.9(d).



                                              704
Wage and Hour Division, Labor                                                           § 790.13

not be inconsistent with the con-                 day before performance of the first
tract. 82 However, the intent of the pro-         principal activity and after perform-
vision is that a custom or practice               ance of the last principal activity of
which is inconsistent with the terms of           the employee. 87
any such contract shall not be taken
into account in determining whether                 DEFENSE OF GOOD FAITH RELIANCE ON
such an activity is compensable. 83                  ADMINISTRATIVE REGULATIONS, ETC.

§ 790.11 Contract, custom or practice             § 790.13   General nature of defense.
    in effect ‘‘at the time of such activ-
    ity.’’                                          (a) Under the provisions of sections 9
                                                  and 10 of the Portal Act, an employer
   The ‘‘contract,’’ ‘‘custom’’ or ‘‘prac-
                                                  has a defense against liability or pun-
tice’’ on which the compensability of
                                                  ishment in any action or proceeding
the activities referred to in section 4 of
                                                  brought against him for failure to com-
the Portal Act may be based, is a con-
                                                  ply with the minimum wage and over-
tract, custom or practice in effect ‘‘at
                                                  time provisions of the Fair Labor
the time of such activity.’’ Thus, the
                                                  Standards Act, where the employer
compensability of such an activity, and
                                                  pleads and proves that ‘‘the act or
its inclusion in computation of hours
                                                  omission complained of was in good
worked, is not determinable by a cus-
tom or practice which had been termi-             faith in conformity with and in reli-
nated before the activity was engaged             ance on any administrative regulation,
in or was adopted some time after the             order, ruling, approval, or interpreta-
activity was performed. This phrase               tion’’ or ‘‘any administrative practice
would also seem to permit recognition             or enforcement policy * * * with re-
of changes in customs, practices and              spect to the class of employers to
agreements which reflect changes in               which he belonged.’’ In order to provide
labor-management relations or poli-               a defense with respect to acts or omis-
cies.                                             sions occurring on or after May 14, 1947
                                                  (the effective date of the Portal Act),
§ 790.12 ‘‘Portion of the day.’’                  the regulation, order, ruling, approval,
   A ‘‘preliminary’’ or ‘‘postliminary’’          interpretation, administrative practice
activity of the kind referred to in sec-          or enforcement policy relied upon and
tion 4 of the Portal Act is compensable           conformed with must be that of the
under a contract, custom, or practice             ‘‘Administrator of the Wage and Hour
within the meaning of that section                Division of the Department of Labor,’’
‘‘only when it is engaged in during the           and a regulation, order, ruling, ap-
portion of the day with respect to                proval, or interpretation of the Admin-
which it is so made compensable.’’ 84             istrator may be relied on only if it is in
This provision in no way affects the              writing. 88 But where the acts or omis-
compensability of activities performed            sions complained of occurred before
within the workday proper or the com-             May 14, 1947, the employer may show
putation of hours worked within such              that they were in good faith in con-
workday for purposes of the Fair Labor            formity with and in reliance on ‘‘any’’
Standards Act; 85 the provision is appli-         (written or nonwritten) administrative
cable only to walking, riding, traveling
or      other      ‘‘preliminary’’    or             87 See Conference Report, p. 13; §§ 790.4(c)

‘‘postliminary’’ activities of the kind           and 790.5(b).
described in section 4(a) of the Portal              The scope of section 4(c) is narrower in this
                                                  respect than that of section 2(b), which is
Act, 86 which are engaged in outside the
                                                  couched in identical language. Cf. Con-
workday, during the portions of the               ference Report, pp. 9, 10; pp. 12, 13. See also
                                                  § 790.23.
  82 Senate Report, pp. 45, 49; colloquy be-         88 Portal Act, sec. 10; Conference Report, p.

tween Senators Donnell and Hawkes, 93             16; statements of Senator Wiley, explaining
Cong. Rec. 2179.                                  the conference agreement to the Senate, 93
  83 Senate Report, pp. 45, 49.                   Cong. Rec. 4270; statements of Representa-
  84 Section 4(c) of the Portal Act (set out in   tives Gwynne and Walter, explaining the
full in § 790.3).                                 conference agreement to the House of Rep-
  85 See §§ 790.4–790.6.                          resentatives, 93 Cong. Rec. 4388, 4389. See
  86 Conference Report, pp. 12, 13.               also §§ 790.17 and 790.19.

                                              705
§ 790.14                                                      29 CFR Ch. V (7– 1– 02 Edition)

regulation, order, ruling, or interpreta-          the employer may be said to have re-
tion of ‘‘any agency of the United                 lied in good faith upon this opinion and
States,’’ or any administrative practice           therefore did not compensate such em-
or enforcement policy of ‘‘any such                ployees during the period of the con-
agency’’ with respect to the class of              tract in accordance with the provisions
employers to which he belonged. 89 In              of the Act. After completion of the con-
all cases, however, the act or omission            tract on January 1, 1948, the employ-
complained of must be both ‘‘in con-               ees, who have learned that they are
formity with’’ 90 and ‘‘in reliance on’’ 91        probably covered by the Act, bring suit
the administrative regulation, order,              against their employer for unpaid over-
ruling, approval, interpretation, prac-            time compensation which they claim is
tice, or enforcement policy, as the case           due them. If the court finds that the
may be, and such conformance and reli-             employees were performing work sub-
ance and such act or omission must be              ject to the Act, they can recover for
‘‘in good faith.’’ 92 The relief from li-          the period commencing May 14, 1947,
ability or punishment provided by sec-             even though the employer pleads and
tions 9 and 10 of the Portal Act is lim-           proves that his failure to pay overtime
ited by the statute to employers who               was in good faith in conformity with
both plead and prove all the require-              and in reliance on the opinion of X
ments of the defence. 93                           Agency, because for that period the de-
   (b) The distinctions mentioned in               fense would, under section 10 of the
paragraph (a) of this section, depending           Portal Act, have to be based upon writ-
on whether the acts or omissions com-              ten administrative regulation, order,
plained of occurred before or after May            ruling, approval, or interpretation, or
14, 1947, may be illustrated as follows:           an administrative practice or enforce-
Assume that an employer, on com-                   ment policy of the Administrator of
mencing performance of a contract                  the Wage and Hour Division. The de-
with X Federal Agency extending from               fense would, however, be good for the
January 1, 1947 to January 1, 1948, re-            period from January 1, 1947 to May 14,
ceived an opinion from the agency that             1947, and the employer would be freed
employees working under the contract               from liability for that period under the
were not covered by the Fair Labor                 provisions of section 9 of the statute.
Standards Act. Assume further that
                                                   § 790.14 ‘‘In conformity with.’’
 89 Portal   Act, sec. 10; Conference Report, p.      (a) The ‘‘good faith’’ defense is not
16; statement of Senator Wiley, explaining         available to an employer unless the
the conference agreement to the Senate, 93         acts or omissions complained of were
Cong. Rec. 4270; statements of Representa-
tives Gwynne and Walter, 93 Cong. Rec. 4388,
                                                   ‘‘in conformity with’’ the regulation,
4389. See also § 790.19.                           order, ruling, approval, interpretation,
  90 See § 790.14.                                 administrative practice or enforcement
  91 See § 790.16.                                 policy upon which he relied. 94 This is
  92 See § 790.15.                                 true even though the employer erro-
  93 Conference Report, pp. 15, 16; statements
                                                   neously believes he conformed with it
of Representatives Gwynne and Walter, ex-          and in good faith relied upon it; actual
plaining the conference agreement to the           conformity is necessary.
House of Representatives, 93 Cong. Rec. 4388,
4389; statements of Senators Cooper and
                                                      (b) An example of an employer not
Donnell, 93 Cong. Rec. 4372, 4451, 4452. See       acting ‘‘in conformity with’’ an admin-
also the President’s message of May 14, 1947,      istrative regulation, order, ruling, ap-
to the Congress on approval of the Act (93         proval, practice, or enforcement policy
Cong. Rec. 5281).                                  is a situation where an employer re-
  The requirements of the statute as to            ceives a letter from the Administrator
pleading and proof emphasize the continuing        of the Wage and Hour Division, stating
recognition by Congress of the remedial na-        that if certain specified circumstances
ture of the Fair Labor Standards Act and of
the need for safeguarding the protection
                                                   and facts regarding the work performed
which Congress intended it to afford employ-
ees. See § 790.2; of. statements of Senator          94 Statement of Senator Cooper, 93 Cong.

Wiley, 93 Cong. Rec. 4270; Senator Donnell, 93     Rec. 4451; message of the President to Con-
Cong. Rec. 4452, and Representative Walter,        gress on approval of the Act, May 14, 1947, 93
93 Cong. Rec. 4388, 4389.                          Cong. Rec. 5281.

                                               706
Wage and Hour Division, Labor                                                  § 790.15

by the employer’s employees exist, the      § 790.15 ‘‘Good faith.’’
employees are, in his opinion, exempt          (a) One of the most important re-
from provisions of the Fair Labor           quirements of sections 9 and 10 is proof
Standards Act. One of these hypo-           by the employer that the act or omis-
thetical circumstances upon which the       sion complained of and his conform-
opinion was based does not exist re-        ance with and reliance upon an admin-
garding these employees, but the em-        istrative regulation, order, ruling, ap-
ployer, erroneously assuming that this      proval, interpretation, practice or en-
circumstance is irrelevant, relies upon     forcement policy, were in good faith.
the Administrator’s ruling and fails to     The legislative history of the Portal
compensate the employees in accord-         Act makes it clear that the employer’s
ance with the Act. Since he did not act     ‘‘good faith’’ is not to be determined
‘‘in conformity’’ with that opinion, he     merely from the actual state of his
has no defense under section 9 or 10 of     mind. Statements made in the House
the Portal Act.                             and Senate indicate that ‘‘good faith’’
   (c) As a further example of the re-      also depends upon an objective test—
quirement of conformity, reference is       whether the employer, in acting or
made to the illustration given in           omitting to act as he did, and in rely-
§ 790.13(b), where an employer, who had     ing upon the regulation, order, ruling,
                                            approval, interpretation, administra-
a contract with the X Federal Agency
                                            tive practice or enforcement policy,
covering the period from January 1,
                                            acted as a reasonably prudent man
1947 to January 1, 1948, received an
                                            would have acted under the same or
opinion from the agency that employ-        similar circumstances. 95 ‘‘Good faith’’
ees working on the contract were not        requires that the employer have hon-
covered by the Fair Labor Standards         esty of intention and no knowledge of
Act. Assume (1) that the X Agency’s         circumstances which ought to put him
opinion was confined solely and exclu-      upon inquiry. 96
sively to activities performed under           (b) Some situations illustrating the
the particular contract held by the em-     application of the principles stated in
ployer with the agency and made no          paragraph (a) of this section may be
general statement regarding the status      mentioned. Assume that a ruling from
under the Act of the employer’s em-         the Administrator, stating positively
ployees while performing other work;        that the Fair Labor Standards Act does
and (2) that the employer, erroneously      not apply to certain employees, is re-
believing the reasoning used in the         ceived by an employer in response to a
agency’s opinion also applied to other      request which fully described the du-
and different work performed by his         ties of the employees and the cir-
employees, did not compensate them          cumstances surrounding their employ-
for such different work, relying upon       ment. It is clear that the employer’s
that opinion. As previously pointed         employment of such employees in such
out, the opinion from the X Agency, if      duties and under such circumstances in
relied on and conformed with in good        reliance on the Administrator’s ruling,
                                            without compensating them in accord-
faith by the employer, would form the
                                            ance with the Act, would be in good
basis of a ‘‘good faith’’ defense for the
                                            faith so long as the ruling remained
period prior to May 14, 1947, insofar as
                                            unrevoked and the employer had no no-
the work performed by the employees         tice of any facts or circumstances
on this particular contract with that       which would lead a reasonably prudent
agency was concerned. The opinion           man to make further inquiry as to
would not, however, furnish the em-
ployer a defense regarding any other          95 Colloquy    between      Representatives
activities of a different nature per-       Reeves and Devitt, 93 Cong. Rec. 1593; col-
formed by his employees, because it         loquy between Senators Ferguson and
was not an opinion concerning such ac-      Donnell, 93 Cong. Rec. 4451–4452.
                                              96 See statement of Senator McGrath, 93
tivities, and insofar as those activities
are concerned, the employer could not       Cong. Rec. 2254–2255; statement of Represent-
act ‘‘in conformity’’ with it.              ative Keating, 93 Cong. Rec. 4391; statement
                                            of Representative Walter, 93 Cong. Rec. 4389.

                                        707
§ 790.15                                                29 CFR Ch. V (7– 1– 02 Edition)

whether the employees came within            quent action brought by employees
the Act’s provisions. Assume, however,       under section 16(b) of the Fair Labor
that the Administrator’s ruling was ex-      Standards Act, the court may decide
pressly based on certain court deci-         that the employer knew facts which
sions holding that employees so en-          ought to have put him as a reasonable
gaged in commerce or in the produc-          man upon further inquiry, and, con-
tion of goods for commerce, and that         sequently, that he did not rely ‘‘in
the employer subsequently learned            good faith’’ within the meaning of sec-
from his attorney that a higher court        tion 9, upon the bulletin published by
had reversed these decisions or had          the X Agency. 97
cast doubt on their correctness by             (d) Insofar as the period prior to May
holding employees similarly situated         14, 1947, is concerned, the employer
to be engaged in an occupation nec-          may have received an interpretation
essary to the production of goods for        from an agency which conflicted with
interstate commerce. Assume further          an interpretation of the Administrator
that the employer, after learning of         of the Wage and Hour Division of which
this, made no further inquiry but con-       he was also aware. If the employer
tinued to pay the employees without          chose to reply upon the interpretation
regard to the requirements of the Act        of the other agency, which interpreta-
in reliance on the Administrator’s ear-      tion worked to his advantage, consider-
lier ruling. In such a situation, if the     able weight may well be given to the
employees later brought an action            fact that the employer ignored the in-
against the employer, the court might        terpretation of the agency charged
determine that they were entitled to         with the administration of the Fair
the benefits of the Act and might de-        Labor Standards Act and chose instead
cide that the employer, after learning       to rely upon the interpretation of an
of the decision of the higher court,         outside agency. 98 Under these cir-
knew facts which would put a reason-         cumstances ‘‘the question could prop-
ably prudent man upon inquiry and            erly be considered as to whether it was
therefore had not provided his good          a good faith reliance or whether the
faith in relying upon the Administra-        employer was simply choosing a course
tor’s ruling after receiving this advice.    which was most favorable to him.’’ 99
  (c) In order to illustrate further the
test of ‘‘good faith,’’ suppose that the X     97 See    statement    of   Representative
Federal Agency published a general           Gwynne, 93 Cong. Rec. 1563, and colloquy be-
bulletin     regarding     manufacturing,    tween Senators Connally and Donnell, 93
which contained the erroneous state-         Cong. Rec. 4453.
                                               98 This view was expressed several times
ment that all foremen are exempt
                                             during the debates. See statements of Rep-
under the Fair Labor Standards Act as        resentative Keating, 93 Cong. Rec. 1512 and
employed in a ‘‘bona fide executive          4391; colloquy between Representatives
* * * capacity.’’ Suppose also that an       Keating and Devitt, 93 Cong. Rec. 1515; state-
employer knowing that the Adminis-           ment of Representative Walter, 93 Cong. Rep.
trator of the Wage and Hour Division is      4389;     statement     of     Representative
charged with the duties of admin-            MacKinnon, 93 Cong. Rec. 4391; statement of
istering the Fair Labor Standards Act        Representative Gwynne, 93 Cong. Rec. 1563;
and of defining the phrase ‘‘bona fide       statement of Senator Cooper, 93 Cong. Rec.
                                             4451; colloquy between Senators Connally
executive * * * capacity’’ in that Act,      and Donnell, 93 Cong. Rec. 4452–4453.
nevertheless relied upon the above bul-        99 Statement of Senator Cooper, 93 Cong.
letin without inquiring further and, in-     Rec. 4451. Representative Walter, a member
conformity with this advice, failed to       of the Conference Committee, made the fol-
compensate his nonexempt foremen in          lowing explanatory statement to the House
accordance with the overtime provi-          of Representatives (93 Cong. Rec. 4390): ‘‘The
sions of the Fair Labor Standards Act        defense of good faith is intended to apply
for work subject to that Act, performed      only where an employer innocently and to
                                             his detriment, followed the law as it was laid
before May 14, 1947. If the employer had     down to him by Government agencies, with-
inquired of the Administrator or had         out notice that such interpretations were
consulted the Code of Federal Regula-        claimed to be erroneous or invalid. It is not
tions, he would have found that his          intended that this defense shall apply where
foremen were not exempt. In a subse-         an employer had knowledge of conflicting

                                         708
Wage and Hour Division, Labor                                                         § 790.17

This problem will not arise in regard to         Fair Labor Standards Act. Since the
any acts or omissions by the employer            employer had no knowledge of the ad-
occurring on or after May 14, 1947, be-          ministrator’s interpretation at the
cause section 10 provides that the em-           time of his violations, his failure to
ployer, insofar as the Fair Labor                comply with the overtime provisions
Standards Act is concerned, may rely             could not have been ‘‘in reliance on’’
only upon regulations, orders, rulings,          that interpretation; consequently, he
approvals, interpretations, administra-          has no defense under section 9 or sec-
tive practices and enforcement policies          tion 10 of the Portal Act.
of the Administrator of the Wage and
Hour Division. 100                               § 790.17 ‘‘Administrative      regulation,
                                                      order, ruling, approval, or interpre-
§ 790.16 ‘‘In reliance on.’’                          tation.’’
   (a) In addition to acting (or omitting           (a) Administrative regulations, or-
to act) in good faith and in conformity          ders, rulings, approvals, and interpre-
with an administrative regulation,               tations are all grouped together in sec-
order, ruling, approval, interpretation,         tions 9 and 10, with no distinction
enforcement policy or practice, the em-          being made in regard to their function
ployer must also prove that he actually          under the ‘‘good faith’’ defense. Ac-
relied upon it. 101                              cordingly, no useful purpose would be
   (b) Assume, for example, that an em-          served by an attempt to precisely de-
ployer failed to pay his employees in            fine and distinguish each term from
accordance with the overtime provi-              the others, especially since some of
sions of the Fair Labor Standards Act.           these terms are often employed inter-
After an employee suit has been                  changeably as having the same mean-
brought against him, another employer            ing.
calls his attention to a letter that had            (b) The terms ‘‘regulation’’ and
been written by the Administrator of             ‘‘order’’ are variously used to connote
the Wage and Hour Division, in which             the great variety of authoritative rules
the opinion was expressed that employ-           issued pursuant to statute by an ad-
ees of the type employed by the defend-          ministrative agency, which have the
ant were exempt from the overtime                binding effect of law, unless set aside
provisions of the Fair Labor Standards           upon judicial review as arbitrary, ca-
Act. The defendant had no previous               pricious, an abuse of discretion, or oth-
knowledge of this letter. In the pending         erwise not in accordance with law. 102
employee suit, the court may decide                 (c) The term ‘‘interpretation’’ has
that the opinion of the Administrator            been used to describe a statement ‘‘or-
was erroneous and that the plaintiffs            dinarily of an advisory character, indi-
should have been paid in accordance              cating merely the agency’s present be-
with the overtime provisions of the              lief concerning the meaning of applica-
                                                 ble statutory language.’’ 103 This would
rules and chose to act in accordance with the    include bulletins, releases, and other
one most favorable to him.’’ Representative      statements issued by an agency which
Gwynne made a similar statement (93 Cong.        indicate its interpretation of the provi-
Rec. 1563).                                      sions of a statute.
   100 Statement of Senator Wiley explaining
                                                    (d) The term ‘‘ruling’’ commonly re-
Conference agreement to the Senate, 93           fers to an interpretation made by an
Cong. Rec. 4270; statement of Representative
Walter, 93 Cong. Rec. 4389.
                                                 agency ‘‘as a consequence of individual
   101 In a colloquy between Senators Thye

and Cooper (93 Cong. Rec. 4451), Senator Coo-      102 See Final Report of Attorney General’s

per pointed out that the purpose of section 9    Committee on Administrative Procedure,
was to provide a defense for an employer who     Senate Document No. 8, 77th Cong. 1st sess.
pleads and proves, among other things, that      (1941) p. 27; 1 Vom Baur, Federal Administra-
his failure to bring himself under the Act       tive Law (1942) p. 486; sections 2(c), 2(d) and
‘‘grew out of reliance upon’’ the ruling of an   10(e) of the Administrative Procedure Act, 5
agency. See also statement of Representa-        U.S.C.A. section 1001.
tive Keating, 93 Cong. Rec. 1512; colloquy be-     103 Final Report of the Attorney General’s

tween Representatives Keating and Devitt,        Committee on Administrative Procedure,
93 Cong. Rec. 1515; cf. colloquy between Sen-    Senate Document No. 8, 77th Cong., 1st sess.
ators Donnell and Ball, 93 Cong. Rec. 4372.      (1941), p. 27.

                                             709
§ 790.17                                                     29 CFR Ch. V (7– 1– 02 Edition)

requests for rulings upon particular              administrative regulation, order, rul-
questions.’’ 104 Opinion letters of an            ing, approval or interpretation, within
agency expressing opinions as to the              the meaning of sections 9 and 10.
application of the law to particular                 (g) The affirmative action taken by
facts presented by specific inquiries             the agency must be one which actually
fall within this description.                     results in a ‘‘regulation, order, ruling,
  (e) The term ‘‘approval’’ includes the          approval, or interpretation.’’ If for ex-
granting of licenses, permits, certifi-           ample, the agency declines to express
cates or other forms of permission by             an opinion as to the application of the
an agency, pursuant to statutory au-              law in a particular fact situation, the
thority. 105                                      agency is refraining from interpreting
  (f) The terms ‘‘administrative regula-          the law rather than giving an interpre-
tion order, ruling, approval, or inter-           tation. 108
pretation’’ connote affirmative action               (h) An employer does not have a de-
on the part of an agency. 106 A failure           fense under these two sections unless
to act or a failure to reply to an in-            the regulation, order, ruling, approval,
quiry on the part of an administrative            or interpretation, upon which he relies,
agency is not a ‘‘regulation, order, rul-         is in effect and operation at the time of
ing, approval, or interpretation’’ with-          his reliance. To the extent that it has
in the meaning of sections 9 and 10. 107          been rescinded, modified, or deter-
Thus, suppose that an employer writes             mined by judicial authority to be in-
a letter to the Administrator of the              valid, it is no longer a ‘‘regulation,
Wage and Hour Division, setting forth             order, ruling, approval, or interpreta-
the facts concerning his business. He             tion,’’ and, consequently, an employ-
goes on to state in his letter that he            er’s subsequent reliance upon it offers
believes his employees are not covered            him no defense under section 9 and
by the Fair Labor Standards Act, and              10. 109 On the other hand, the last sen-
that unless he hears to the contrary              tence in section 9 and in section 10 ex-
from the Administrator, he will not               pressly provides that where the em-
pay them in accordance with its provi-            ployer’s good faith reliance on a regu-
sions. When the employer does not re-             lation, order, ruling, approval or inter-
ceive a reply to his letter within what           pretation occurs before it is rescinded,
he regards as a reasonable time, he as-           modified, or determined by judicial au-
sumes that the Administrator agrees               thority to be invalid, his claim of a
with his (the employer’s) interpreta-             ‘‘good faith’’ defense for such earlier
tion of the Act and he acts accordingly.          period is not defeated by the subse-
The employer’s reliance under such cir-           quent rescission or modification or by
cumstances is not a reliance upon an              the subsequent determination of inva-
                                                  lidity.
  104 Final Report of the Attorney General’s         (i) To illustrate these principles, as-
Committee, page 27. To the same effect in 1       sume that the Administrator of the
Vom Baur, Federal Administrative Law              Wage and Hour Division, in reply to an
(1942), p. 492.                                   inquiry received from a particular em-
  105 See section 2(e) of the Administrative
                                                  ployer, sends him a letter, in which the
Procedure Act, 5 U.S.C.A. sec. 1001.
  106 See Final Report of Attorney General’s
                                                    108 See Final Report of Attorney General’s
Committee, p. 27; 1 Vom Baur, Federal Ad-
ministrative Law, pp. 486, 492; Conference        Committee on Administrative Procedure, p.
Report, p. 16; statements of Representative       33.
                                                    109 See House Report, p. 7, and statements
Walter, 93 Cong. Rec. 4389; statements of
Representative Gwynne, 93 Cong. Rec. 1491;        of Representative Gwynne, 93 Cong. Rec.
statements of Senator Donnell, 93 Cong. Rec.      1491, 1492, 1563. It will be noted that the pro-
2185; President’s message of May 14, 1947, on     visions of section 12 of the Act, affording re-
approval of the Portal-to-Portal Act (93          lief of employers who acted in conformity
Cong. Rec. 5281).                                 with the invalidated ‘‘area of production’’
  107 That this is true on and after the effec-   regulations, would have been unnecessary if
tive date of the Act is clear from the require-   reliance could be placed on a regulation no
ment in section 10 that the regulation, order,    longer in effect. See statement of Represent-
ruling, approval or interpretation relied on      ative Gwynne, 93 Cong. Rec. 4388, and cf. re-
must be that of the Administrator in writ-        marks of Senator McCarran, discussing the
ing. As to section 9, the terms appear to have    bill before section 12 was added by the con-
no different meaning.                             ference committee, 93 Cong. Rec. 2247.

                                              710
Wage and Hour Division, Labor                                                          § 790.18

opinion is expressed that employees              § 790.18 ‘‘Administrative practice or
performing a particular type of work                  enforcement policy.’’
are not covered by the Fair Labor                   (a) The terms ‘‘administrative prac-
Standards Act. The employer relied               tice or enforcement policy’’ refer to
upon the Administrator’s letter and did          courses of conduct or policies which an
not pay his employees who were en-               agency has determined to follow 111 in
gaged in such work, in accordance with           the administration and enforcement of
the provisions of the Fair Labor Stand-          a statute, either generally, or with re-
ards Act. Several months later the Ad-           spect to specific classes of situa-
ministrator issues a general statement,          tions. 112 Administrative practices and
published in the FEDERAL REGISTER                enforcement policies may be set forth
and given general distribution, that re-         in statements addressed by the agency
cent court decisions have persuaded              to the public. 113 Although they may be,
him that the class of employees re-              and frequently are, based upon deci-
ferred to above are within the coverage          sions or views which the agency has set
of the Fair Labor Standards Act. Ac-             forth in its regulations, orders, rulings,
cordingly, the statement continues,              approvals, or interpretations, neverthe-
the Administrator hereby rescinds all            less administrative practices and en-
his previous interpretations and rul-            forcement policies differ from these
ings to the contrary. The employer               forms of agency action in that such
who had received the Administrator’s             practices or policies are not limited to
letter, not learning of the Administra-          matters concerned with the meaning or
tor’s subsequent published statement             legal effect of the statutes adminis-
rescinding his contrary interpreta-              tered by the agency and may be based
tions, continued to rely upon the Ad-            wholly or in part on other consider-
ministrator’s letter after the effective         ations.
date of the published statement. Under              (b) To illustrate this distinction, sup-
these circumstances, the employer                pose the Administrator of the Wage
would, from the date he received the             and Hour Division issues a general
Administrator’s letter to the effective
date of the published statement re-              nate the employer’s liability for liquidated
scinding the position expressed in the           damages in an employee suit. See § 790.22.
letter, have a defense under section 9             111 The agency may have determined to fol-

or 10, assuming he relied upon and con-          low the course of conduct or policy for a lim-
formed with that letter in good faith.           ited time only (see paragraphs (c) and (f),
However, in spite of the fact that this          this section) or for an indefinite time (see
                                                 paragraph (b), this section), or for a period
employer did not receive actual notice           terminable by the happening of some contin-
of the subsequent published statement,           gency, such as a final decision in pending
he has no defense for his reliance upon          litigation.
the letter during the period after the             112 See United States v. Minnesota, 270 U.S.

effective date of the public statement,          181 (1926); United States v. Boston & Maine
because the letter, having been re-              R.R. Co., 279 U.S. 732 (1929); Lucas v. American
scinded, was no longer an ‘‘administra-          Code Co., 280 U.S. 445 (1930); Estate of Sanford
tive * * * ruling * * * or interpreta-           v. Commissioner of Internal Revenue, 308 U.S.
                                                 39 (1939). See also Final Report of Attorney
tion’’ within the meaning of sections 9          General’s Committee on Administrative Pro-
and 10. 110                                      cedure in Government Agencies, pp. 26–29; 1
                                                 Von Baur, Federal Administrative Law
  110 See Final Report of Attorney General’s     (1942), p. 474.
Gwynne, 93 Cong. Rec. 1563; colloquy between       As to requirement that practice or policy
Representative Gwynne and Lee Pressman,          be one with respect to a ‘‘class of employ-
Hearings before House Subcommittee on the        ers,’’ see paragraph (g) of this section.
Judiciary, pp. 156–7.                              113 Pursuant to section 3 of the Administra-

  The fact that an employer has no defense       tive Procedure Act, statements of general
under section 9 or 10 of the Portal Act in the   policy formulated and adopted by the agency
situation stated in the text would not, of       for the guidance of the public are published
course, preclude a court from finding that he    in the FEDERAL REGISTER. An example is the
acted in good faith having reasonable            statement of the Secretary of Labor and the
grounds to believe he was not in violation of    Administrator of the Wage and Hour Divi-
the law. In such event, section 11 of the Act    sion, dated June 16, 1947, published in 12 FR
would permit the court to reduce or elimi-       3915.

                                             711
§ 790.18                                               29 CFR Ch. V (7– 1– 02 Edition)

statement indicating that in his opin-      in good faith that such acts or omis-
ion a certain class of employees come       sions were not violations of the Act.’’
within a specified exemption from pro-        (e) The statement explaining the
visions of the Fair Labor Standards         Conference Committee Report goes on
Act in any workweek when they do not        to say, ‘‘However, the employer will be
engage in a substantial amount of non-      relieved from criminal proceedings or
exempt work. Such a statement is an         injunctions brought by the United
‘‘interpretation’’ within the meaning of    States, not only in the cases described
sections 9 and 10 of the Portal Act. As-    in the preceding paragraph, but also
sume that at the same time, the Ad-         where the practice or policy was such
ministrator states that for purposes of     as to lead him in good faith to believe
enforcement, until further notice such      that he would not be proceeded against
an employee will be considered as en-       by the United States.’’
gaged in a substantial amount of non-         (f) The statement explaining the Con-
exempt work in any workweek when he         ference Committee Report gives the
spends in excess of a specified percent-    following illustrations of the above
age of his time in such nonexempt           rules:
work. This latter type of statement an-       An employer will not be relieved from li-
nounces an ‘‘administrative practice or     ability under the Fair Labor Standards Act
enforcement policy’’ within the mean-       of 1938 to his employees (in an action by
ing of sections 9 and 10 of the Portal      them) for the period December 26, 1946, to
Act.                                        March 1, 1947, if he is not exempt under the
                                            ‘‘Area of Production’’ regulations published
   (c) An administrative practice or en-    in the FEDERAL REGISTER of December 25,
forcement policy may, under certain         1946, notwithstanding the press release
circumstances be at variance with the       issued by the Administrator of the Wage and
agency’s current interpretation of the      Hour Division of the Department of Labor, in
law. For example, suppose the Admin-        which he stated that he would not enforce
istrator announces that as a result of      the Fair Labor Standards Act of 1938 on ac-
                                            count of acts or omissions occurring prior to
court decisions he has changed his view
                                            March 1, 1947. On the other hand, he will, by
as to coverage of a certain class of em-    reason of the enforcement policy set forth in
ployees under the Fair Labor Stand-         such press releases, have a good defense to a
ards Act. However, he may at the same       criminal proceeding or injunction brought by
time announce that in order to give af-     the United States based on an act or omis-
fected employers an opportunity to          sion prior to March 1, 1947.
make the adjustments necessary for            (g) It is to be noted that, under the
compliance with the changed interpre-       language of sections 9 and 10, an em-
tation, the Wage and Hour Division          ployer has a defense for good faith reli-
will not commence to enforce the Act        ance on an administrative practice or
on the basis of the new interpretation      an enforcement policy only when such
until the expiration of a specified pe-     practice or policy is ‘‘with respect to
riod.                                       the class of employers to which he be-
   (d) In the statement of the managers     longed.’’ 114 Thus where an enforcement
on the part of the House, accom-            policy has been announced pertaining
panying the report of the Conference        to laundries and linen-supply compa-
Committee on the Portal-to-Portal           nies serving industrial or commercial
Act, it is indicated (page 16) that under
sections 9 and 10 ‘‘an employer will be       114 This provision, which appeared for the
relieved from liability, in an action by    first time in the conference bill, to which the
an employee, because of reliance in         term ‘‘practice’’ was restored after elimi-
good faith on an administrative prac-       nation by the Senate, was apparently de-
tice or enforcement policy only (1)         signed to meet some of the objections which
where such practice or policy was           led to elimination of the word ‘‘practice’’
based on the ground that an act or          from the bill reported by the Senate judici-
                                            ary Committee. Cf. remarks of Senator Mur-
omission was not a violation of the
                                            ray, 93 Cong. Rec. 2238; remarks of Senator
(Fair Labor Standards) Act, or (2)          Johnston, 93 Cong. Rec. 2373; colloquy be-
where a practice or policy of not en-       tween Senators Lucas and Donnell, 93 Cong.
forcing the Act with respect to acts or     Rec. 2185; remarks of Senator McGrath, 93
omissions led the employer to believe       Cong. Rec. 2254–2256.

                                        712
Wage and Hour Division, Labor                                                              § 790.19

establishments the operator of an es-               establishments, for enforcement pur-
tablishment furnishing window-wash-                 poses, as not subject to the provisions
ing service to industrial and commer-               of the Fair Labor Standards Act, in the
cial concerns, who relied upon that pol-            absence of proof of some affirmative
icy in regard to his employees, has no              action by the Administrator adopting
defense under sections 9 and 10. The en-            such a practice or policy. A failure to
forcement policy upon which he                      inspect might be due to any one of a
claimed reliance did not pertain to                 number of different reasons. It might,
‘‘the class of employers to which he be-            for instance, be due entirely to the fact
longed.’’                                           that the inspectors’ time was fully oc-
   (h) Administrative practices and en-             cupied in inspections of other indus-
forcement policies, similar to adminis-             tries in the area.
trative regulations, orders, rulings, ap-
                                                      (i) It was pointed out above that sec-
provals and interpretations required af-
                                                    tions 9 and 10 do not offer a defense to
firmative action by an administrative
                                                    the employer who relies upon a regula-
agency. 115 This should not be construed
as meaning that an agency may not                   tion, order, ruling, approval or inter-
have administrative practices or poli-              pretation which at the time of his reli-
cies to refrain from taking certain ac-             ance has been rescinded, modified or
tion as well as practices or policies               determined by judicial authority to be
contemplating positive acts of some                 invalid. The same is true regarding ad-
kind. 116 But before it can be deter-               ministrative practices and enforcement
mined that an agency actually has a                 policies. 118 However, a plea of a ‘‘good
practice or policy to refrain from act-             faith’’ defense is not defeated by the
ing, there must be evidence of its adop-            fact that after the employer’s reliance,
tion by the agency through some af-                 the practice or policy is rescinded,
firmative action establishing it as the             modified, or declared invalid.
practice or policy of the agency. 117
Suppose, for example, that shoe fac-                § 790.19   ‘‘Agency of the United States.’’
tories in a particular area were not in-               (a) In order to provide a defense
vestigated by Wage and Hour Division                under section 9 or section 10 of the Por-
inspectors operating in the area. This              tal Act, the regulation, order, ruling,
fact would not establish the existence              approval, interpretation, administra-
of a practice or policy of the Adminis-             tive practice or enforcement policy re-
trator to treat the employees of such               lied upon and conformed with must be
                                                    that of an ‘‘agency of the United
  115 See Union Stockyards & Transit Co. v.
                                                    States.’’ Insofar as acts or omissions
United States, 308 U.S. 213, 223 (1939); and        occurring on or after May 14, 1947 are
United States v. American Union Transport,
                                                    concerned, it must be that of the
Inc., 327 U.S. 437, 454 (1946). Cf. Federal Trade
Commission v. Bunte Brothers, Inc., 312 U.S.        ‘‘agency of the United States specified
349, 351 (1941). See also President’s message       in’’ section 10(b), which, in the case of
of May 14, 1947, 93 Cong. Rec. 5281.                the Fair Labor Standards Act, is ‘‘the
  116 See, for example, Mintz v. Baldwin, 289       Administrator of the Wage and House
U.S. 346, 349 (1933), where the Department of       Division of the Department of Labor.’’
Agriculture announced ‘‘its policy for the          However, with respect to acts or omis-
present is to leave the control (of Bang’s dis-     sions occurring prior to May 14, 1947,
ease) with the various States.’’ See also in
this connection the statement of June 23,
                                                    section 9 of the Act permits the em-
1947, by the Senate Committee on the Judici-        ployer to show that he relied upon and
ary regarding the President’s message of            conformed with a regulation, order,
May 14, 1947, on the Portal-to-Portal Act, 93       ruling, approval, interpretation, ad-
Cong. Rec. 5281.                                    ministrative practice or enforcement
  117 Union Stockyards & Transit Co. v. United
                                                    policy of ‘‘any agency of the United
States, supra. It may be noted in this connec-      States.’’ 119
tion that examples given by the sponsors of
the legislation, in discussing the terms ‘‘ad-
ministrative practice or enforcement pol-              118 See § 790.17 (h) and (i), and footnotes 111

icy,’’ involved situations in which affirma-        and 112.
tive action had been taken by the agency.              119 The differences in the provisions of the

Conference Report, p. 16; 93 Cong. Rec. 2185,       two sections are explained and illustrated in
2198, 4389–4391.                                    § 790.13.

                                                713
§ 790.19                                                      29 CFR Ch. V (7– 1– 02 Edition)

  (b) The Portal Act contains no com-               ‘agency’ and not of an individual offi-
prehensive definition of ‘‘agency’’ as              cer or employee of the agency. Thus, if
used in sections 9 and 10, but an indica-           inspector A tells the employer that the
tion of the meaning intended by Con-                agency interpretation is that the em-
gress may be found in section 10. In                ployer is not subject to the (Fair Labor
that section, where the ‘‘agency’’                  Standards) Act, the employer is not re-
whose regulation, order, ruling, ap-                lieved from liability, despite his reli-
proval, interpretation, administrative              ance in good faith on such interpreta-
practice or enforcement policy may be               tions, unless it is in fact the interpre-
relied on is confined to ‘‘the agency of            tation of the agency.’’ 123 Similarly, the
the United States’’ specified in the sec-           Chairman of the Senate Judiciary
tion, the Act expressly limits the
                                                    Committee, in explaining the con-
meaning of the term to the official or
                                                    ference agreement to the Senate, made
officials actually vested with final au-
thority under the statutes involved. 120            the following statement concerning the
Similarly, the definitions of ‘‘agency’’            ‘‘good faith’’ defense. ‘‘It will be noted
in other Federal statutes 121 indicate              that the relief from liability must be
that the term has customarily been re-              based on a ruling of a Federal agency,
stricted in its usage by Congress to the            and not a minor official thereof. I,
persons vested under the statutes with              therefore, feel that the legitimate in-
the real power to act for the Govern-               terest of labor will be adequately pro-
ment—those who actually have the                    tected under such a provision, since the
power to act as (rather than merely                 agency will exercise due care in the
for) the highest administrative author-             issuance of any such ruling.’’ 124
ity of the Government establish-                       (c) Accordingly, the defense provided
ment. 122 furthermore, it appears from              by sections 9 and 10 of the Portal Act is
the statement of the managers on the                restricted to those situations where
part of the House accompanying the                  the employer can show that the regula-
Conference Committee Report, that the               tion, order, ruling, approval, interpre-
term ‘‘agency’’ as appearing in the Por-            tation, administrative practice or en-
tal Act was employed in this sense. As              forcement policy with which he con-
there stated (p. 16), the regulations, or-          formed and on which he relied in good
ders, ruling, approvals, interpretations,           faith was actually that of the author-
administrative practices and enforce-               ity vested with power to issue or adopt
ment policies relied upon and con-                  regulations, orders, rulings, approvals,
formed with ‘‘must be those of an
                                                    interpretations, administrative prac-
                                                    tices or enforcement policies of a final
   120 In regard to the Walsh-Healey Act,
                                                    nature as the official act or policy of
‘‘agency’’ is defined in section 10 of the Por-     the agency. 125 Statements made by
tal-to-Portal Act as including, in addition to
the Secretary of Labor, ‘‘any Federal officer       other officials or employees are not
utilized by him in the administration of such       regulations, orders, rulings, approvals,
Act.’’ The legislative history of the Portal-       interpretations, administrative prac-
to-Portal Act (93 Cong. Rec. 2239–2240) re-         tices or enforcement policies of the
veals that this clause was added because of         agency within the meaning of sections
the language in the Walsh-Healey Act au-            9 and 10.
thorizing the Secretary of Labor to admin-
ister the Act ‘‘and to utilize such Federal of-
ficers and employees * * * as he may find             123 See also statement by Representative

necessary in the administration.’’                  Gwynne, 93 Cong. Rec. 1563; and statement
   121 FEDERAL REGISTER Act, 44 U.S.C. 304;         by Senator Wiley explaining the conference
Federal Reports Act, 5 U.S.C. 139; Adminis-         agreement to the Senate, 93 Cong. Rec. 4270.
trative Procedure Act, 5 U.S.C. 1001.                 124 Statement of Senator Wiley, 93 Cong.
   122 See Cudahy Packing Co. v. Holland, 315       Rec. 4270.
U.S. 357 (1942); United States v. Watashe, 102 F.     125 Statement by Representative Gwynne,

(2d) 428 (C.A. 10, 1939); 39 Opinions Attorney      93 Cong. Rec. 1563; statements by Represent-
General 15 (1925). Cf. Keyser v. Hitz, 133 U.S.     ative Walter, 93 Cong. Rec. 1496–1497, 4389;
138 (1890); 39 Opinions Attorney General 541        statement by Representative Robsion, 93
(1933); 13 George Washington Law Review 144         Cong. Rec. 1500; statement by Senator Thye,
(1945).                                             93 Cong. Rec. 4452.



                                                714
Wage and Hour Division, Labor                                                           § 790.21

   RESTRICTIONS AND LIMITATIONS ON                Standards Act 129 may be commenced,
           EMPLOYEE SUITS                         as follows:
                                                    (1) Actions to enforce causes of action ac-
§ 790.20 Right of employees to sue; re-           cruing on or after May 14, 1947; two years.
    strictions on representative actions.           (2) Actions to enforce causes of action ac-
   Section 16(b) of the Fair Labor                cruing before May 14, 1947. 130 Two years or
Standards Act, as amended by section 5            period prescribed by applicable State statute
                                                  of limitations, whichever is shorter.
of the Portal Act, no longer permits an
employee or employees to designate an             These are maximum periods for bring-
agent or representative (other than a             ing such actions, measured from the
member of the affected group) to main-            time the employee’s cause of action ac-
tain, an action for and in behalf of all          crues to the time his action is com-
employees similarly situated. Collec-             menced. 131
tive actions brought by an employee or              (b) The courts have held that a cause
employees (a real party in interest) for          of action under the Fair Labor Stand-
                                                  ards Act for unpaid minimum wages or
and in behalf of himself or themselves
                                                  unpaid overtime compensation and for
and other employees similarly situated
                                                  liquidated damages ‘‘accrues’’ when the
may still be brought in accordance                employer fails to pay the required com-
with the provisions of section 16(b).             pensation for any workweek at the reg-
With respect to these actions, the                ular pay day for the period in which
amendment provides that no employee               the workweek ends. 132 The Portal
shall be a party plaintiff to any such
action unless he gives his consent in               129 Sponsors of the legislation stated that
writing to become such a party and                the time limitations prescribed therein
such consent is filed in the court in             apply only to the statutory actions, brought
which such action is brought. The                 under the special authority contained in sec-
amendment is expressly limited to ac-             tion 16(b), in which liquidated damages may
tions which are commenced on or after             be recovered, and do not purport to affect
                                                  the usual application of State statutes of
the date of enactment of the Portal
                                                  limitation to other actions brought by em-
Act. Representative actions which were            ployees to recover wages due them under
pending on May 14, 1947 are not af-               contract, at common law, or under State
fected by this amendment. 126 However,            statutes. Statements of Representative
under sections 6 and 8 of the Portal              Gwynne, 93 Cong. Rec. 1491, 1557–1588; col-
Act, a collective or representative ac-           loquy between Representative Robsion,
                                                  Vorys, and Celler, 93 Cong. Rec. 1495.
tion commenced prior to such date will
                                                     130 This refers to actions commenced after
be barred as to an individual claimant
who was not specifically named as a               September 11, 1947. Such actions commenced
                                                  on or between May 14, 1947 and September 11,
party plaintiff to the action on or be-
                                                  1947 were left subject to State statutes of
fore September 11, 1947, if his written           limitations. As to collective and representa-
consent to become such a party is not             tives actions commenced before May 14, 1947,
filed with the court within a prescribed          section 8 of the Portal Act makes the period
period. 127                                       of limitations stated in the text applicable
                                                  to the filing, by certain individual claim-
§ 790.21 Time for bringing employee               ants, of written consents to become parties
    suits.                                        plaintiff. See Conference Report, p. 15;
                                                  § 790.20 of this part.
  (a) The Portal Act 128 provides a stat-            131 Conference Report, pp. 13–15.

ute of limitations fixing the time lim-              132 Reid v. Solar Corp., 69 F. Supp. 626 (N.D.

its within which actions by employees             Iowa); Mid-Continent Petroleum Corp. v. Keen,
under section 16(b) of the Fair Labor             157 F. (2d) 310, 316 (C.A. 8). See also Brooklyn
                                                  Savings Bank v. O’Neil, 324 U.S. 697;
                                                  Rigopoulos v. Kervan, 140 F. (2d) 506 (C.A. 2).
 126 Conference  Report, p. 13.                      In some instances an employee may re-
 127 Conference  Report, pp. 14, 15. The claim-   ceive, as a part of his compensation, extra
ant must file this consent within the shorter     payments under incentive or bonus plans,
of the following two periods: (1) Two years,      based on factors which do not permit com-
or (2) the period prescribed by the applicable    putation and payment of the sums due for a
State Statute of limitations. See Conference      particular workweek or pay period until
Report, p. 15.                                    some time after the pay day for that period.
  128 See sections 6–8 inclusive.                                                        Continued


                                              715
§ 790.22                                                       29 CFR Ch. V (7– 1– 02 Edition)

Act 133 provides that an action to en-              of 1940, 136 as amended, which provides
force such a cause of action shall be               that the period of military service
considered to be ‘‘commenced’’:                     shall not be included in the period lim-
   (1) In individual actions, on the date           ited by law for the bringing of an ac-
the complaint is filed;                             tion or proceeding, whether the cause
   (2) In collective or class actions, as to        of action shall have accrued prior to or
an individual claimant.                             during the period of such service.
   (i) On the date the complaint is filed,          § 790.22 Discretion of court as to as-
if he is specifically named therein as a                 sessment of liquidated damages.
party plaintiff and his written consent                (a) Section 11 of the Portal Act pro-
to become such is filed with the court              vides that in any action brought under
on that date, or                                    the Fair Labor Standards Act to re-
   (ii) On the subsequent date when his             cover unpaid minimum wages, unpaid
written consent to become a party                   overtime, compensation, or liquidated
plaintiff is filed in the court, if it was          damages, the court may, subject to
not so filed when the complaint was                 prescribed conditions, in its sound dis-
filed or if he was not then named there-            cretion award no liquidated damages or
in as a party plaintiff. 134                        award any amount of such damages not
   (c) The statute of limitations in the            to exceed the amount specified in sec-
Portal Act is silent as to whether or               tion 16 (b) of the Fair Labor Standards
not the running of the two-year period              Act. 137
of limitations may be suspended for                    (b) The conditions prescribed as pre-
any cause. 135 In this connection, atten-           requisites to such an exercise of discre-
tion is directed to section 205 of the              tion by the court are two: (1) The em-
                                                    ployers must show to the satisfaction
Soldiers’ and Sailors’ Civil Relief Act
                                                    of the court that the act or omission
                                                    giving rise to such action was in good
In such cases it would seem that an employ-         faith; and (2) he must show also, to the
ee’s cause of action, insofar as it may be          satisfaction of the court, that he had
based on such payments, would not accrue
                                                    reasonable grounds for believing that
until the time when such payment should be
made. Cf. Walling v. Harnischfeger Corp., 325       his act or omission was not a violation
U.S. 427.                                           of the Fair Labor Standards Act. If
  133 Section 7. See also Conference Report, p.

14.                                                   136 Act of October 17, 1940, ch. 888, 54 Stat.
  134 This is also the rule under section 8 of      1178, as amended by the act of October 6,
the Portal Act as to individual claimants, in       1942, ch. 581, 56 Stat. 769 (50 U.S.C.A. App.
collective or representative actions com-           sec. 525).
menced before May 14, 1947, who were not              137 Section 16(b) of the Fair Labor Stand-

specifically named as parties plaintiff on or       ards Act provides that an employer who vio-
before September 11, 1947.                          lates the minimum—wage or overtime provi-
  135 A limited suspension provision was con-       sions of the act shall be liable to the affected
tained in section 2(d) of the House bill, but       employees not only for the amount of the
was eliminated by the Senate. Neither the           unpaid minimum wages or unpaid overtime
Senate debates, the Senate committee re-            compensation, as the case may be, but also
port, nor the conference committee report,          for an additional equal amount as liquidated
indicate the reason for this. While the courts      damages. The courts have held that this pro-
have held that in a proper case, a statute of       vision is ‘‘not penal in its nature’’ but rather
limitations may be suspended by causes not          that such damages ‘‘constitute compensation
mentioned in the statute itself (Braun v.           for the retention of a workman’s pay’’ where
Sauerwein, 10 Wall. 218, 223; see also Richards     the required wages are not paid ‘‘on time.’’
v. Maryland Ins. Co., 8 Cranch 84, 92;              Under this provision of the law, the courts
Bauserman v. Blunt, 147 U.S. 647), they have        have held that the liability of an employer
also held that when the statute has once            for liquidated damages in an amount equal
commenced to run, its operation is not sus-         to his underpayments of required wages be-
pended by a subsequent disability to sue, and       come fixed at the time he fails to pay such
that the bar of the statute cannot be post-         wages when due, and the courts were given
poned by the failure of the creditor (em-           no discretion, prior to the enactment of the
ployee) to avail himself of any means within        Portal-to-Portal Act, to relieve him of any
his power to prosecute or to preserve his           portion of this liability. See Brooklyn Savings
claim. Bauserman v. Blunt, 147 U.S. 647, 657;       Bank v. O’Neil, 324 U.S. 697; Overnight Motor
Smith v. Continental Oil Co., 59 F. Supp. 91, 94.   Transp. Co. v. Missel, 316 U.S. 572.

                                                716
Wage and Hour Division, Labor

these conditions are met by the em-
ployer against whom the suit is
brought, the court is permitted, but
not required, in its sound discretion to
reduce or eliminate the liquidated
damages which would otherwise be re-
quired in any judgment against the em-
ployer. This may be done in any action
brought under section 16(b) of the Fair
Labor Standards Act, regardless of
whether the action was instituted prior
to or on or after May 14, 1947, and re-
gardless of when the employee activi-
ties on which it is based were engaged
in. If, however, the employer does not
show to the satisfaction of the court
that he has met the two conditions
mentioned above, the court is given no
discretion by the statute, and it con-
tinues to be the duty of the court to
award liquidated damages. 138
  (c) What constitutes good faith on
the part of an employer and whether he
had reasonable grounds for believing
that his act or omission was not a vio-
lation of the Fair Labor Standards Act
are mixed questions of fact and law,
which should be determined by objec-
tive tests. 139 Where an employer makes
the required showing, it is for the court
to determine in its sound discretion
what would be just according to the
law on the facts shown.
  (d) Section 11 of the Portal Act does
not change the provisions of section
16(b) of the Fair Labor Standards Act
under which attorney’s fees and court
costs are recoverable when judgment is
awarded to the plaintiff.




  138 See Conference Report, p. 17; remarks of

Representative Walter, 93 Cong. Rec. 1496–
1497; President’s message of May 14, 1947, to
the Congress on approval of the Portal Act,
93 Cong. Rec. 5281.
  139 Cf. §§ 790.13 to 790.16.



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