The Fair Labor Standards Act

of 1938, as Amended

U.S. Department of Labor

Employment Standards Administration

Wage and Hour Division

WH Publication 1318

Revised March 2004
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THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED

(29 U.S.C. 201, et seq.)

This publication contains the original text of the Fair Labor Standards Act of 1938 as set forth in 52 Stat. 1060, revised to

reflect the changes effected by the amendments listed in this footnote, which may be found in official text at the cited pages

of the Statutes at Large.

This publication contains 52 Stat. 1060, as amended by:

(1) The Act of August 9, 1939 53 Stat. 1266

(2) Section 404 of Reorganization Plan No. II of 1939 53 Stat. 1436

(3) Sections 3(c)–3(f) of the Act of June 26, 1940 54 Stat. 615

(4) The Act of October 29, 1941 55 Stat. 756

(5) Reorganization Plan No. 2 of 1946 60 Stat. 1095

(6) The Portal-to-Portal Act of 1947 61 Stat. 84

(7) The Act of July 20, 1949 63 Stat. 446

(8) The Fair Labor Standards Amendments of 1949 63 Stat. 910

(9) Reorganization Plan No. 6 of 1950 64 Stat. 1263

(10) The Fair Labor Standards Amendments of 1955 69 Stat. 711

(11) The American Samoa Labor Standards Amendments of 1956 70 Stat. 1118

(12) The Act of August 30, 1957 71 Stat. 514

(13) The Act of August 25, 1958 72 Stat. 844

(14) Section 22 of the Act of August 28, 1958 72 Stat. 948

(15) The Act of July 12, 1960 74 Stat. 417

(16) The Fair Labor Standards Amendments of 1961 75 Stat. 65

(17) The Equal Pay Act of 1963 77 Stat. 56

(18) The Fair Labor Standards Amendments of 1966 80 Stat. 830

(19) Section 8 of the Department of Transportation Act 80 Stat. 931

(20) The Act of September 11, 1967, amending Title 5 of the U.S.C. 81 Stat. 222

(21) Reorganization Plan No. 2 of 1970 84 Stat. 2085

(22) Section 906 of the Education Amendments of 1972 86 Stat. 235

(23) The Fair Labor Standards Amendments of 1974 88 Stat. 55

(24) The Fair Labor Standards Amendments of 1977 91 Stat. 1245

(25) Section 1225 of the Panama Canal Act of 1979 93 Stat. 468

(26) The Fair Labor Standards Amendments of 1985 99 Stat. 787

(27) The Act of October 16, 1986 100 Stat. 1229

(28) The Fair Labor Standards Amendments of 1989 103 Stat. 938

(29) Omnibus Budget Reconciliation Act of 1989 103 Stat. 2481

(30) Omnibus Budget Reconciliation Act of 1990 104 Stat. 1388-29

(31) The Act of November 15, 1990 104 Stat. 2871

(32) The Act of September 30, 1994 108 Stat. 2428

(33) Court Reporter Fair Labor Amendments of 1995 109 Stat. 264

(34) Federal Reports Elimination and Sunset Act of 1995 109 Stat. 722

(35) The Act of August 6, 1996 110 Stat. 1553

(36) Small Business Job Protection Act of 1996 110 Stat. 1755

(37) Minimum Wage Increase Act of 1996 110 Stat. 1928

(38) Department of Labor Appropriations Act, 1998 111 Stat. 1477

(39) Amy Somers Volunteers at Food Banks Act 112 Stat. 1248

(40) Drive for Teen Employment Act 112 Stat. 3137

(41) The Act of December 9, 1999, Defining “Employee in fire protection activities” 113 Stat. 1731

(42) Worker Economic Opportunity Act 114 Stat. 308

(43) Department of Labor Appropriations Act, 2004 118 Stat. 236

(Sec. 108, Fair Labor Standards Act Woodworking Exemption)
The original text of the Fair Labor Standards Act of 1938, as revised by the amendments through 1960, is set in the

“Century” typeface. Added or amended language as enacted by subsequent amendments is represented by several

different typefaces as follows:

Amendments Typeface Used Public Law Date Enacted Statute Citation

Pre-1961 Century Light

1961 Century Boldface 87–30 5/5/61 75 Stat. 65

1966 Century Light Italics 89–601 9/23/66 80 Stat. 830

1972 Century Boldface Italics 92–318 6/23/72 86 Stat. 235 at 375

1974 Century Boldface Italics 93–259 4/8/74 88 Stat. 55

1977 Helvetica Light 95–151 11/1/77 91 Stat. 1245

1985 Helvetica Boldface 99–150 11/13/85 99 Stat. 787

1986 Helvetica Italics 99–486 10/16/86 100 Stat. 1229

1989 Helvetica Boldface Italics 101–157 11/17/89 103 Stat. 938

1990 Helvetica Boldface Italics 101–508 11/5/90 104 Stat. 1388–29

1990 Helvetica Boldface Italics 101–583 11/15/90 104 Stat. 2871

1994 Eras 103–329 9/30/94 108 Stat. 2428

1995 Eras 104–26 9/6/95 109 Stat. 264

1995 Eras 104–66 12/21/95 109 Stat. 722

1996 Eras Italics 104–174 8/6/96 110 Stat. 1553

1996 Eras Italics 104–188 8/20/96 110 Stat. 1755

1996 Eras Italics 104–188 8/20/96 110 Stat. 1928

1997 Eras Boldface 105–78 11/13/97 111 Stat. 1477

1998 Eras Boldface 105–221 8/7/98 112 Stat. 1248

1998 Eras Boldface 105–334 10/31/98 112 Stat. 3137

1999 Eras Boldface 106–151 12/9/99 113 Stat. 1731

2000 Eras Boldface 106–202 5/18/00 114 Stat. 308

2004 Eras Boldface Italics 108–199 1/23/04 118 Stat. 236

Notes:

(1) Reorganization Plan No. 2 of 1946 provided that the functions of the Children’s Bureau and of the Chief of the

Children’s Bureau under the Act as originally enacted be transferrred to the Secretary of Labor.

(2) Reorganization Plan No. 6 of 1950 transferred to the Secretary of Labor all functions of all other officers of the

Department of Labor and all functions of all agencies and employees of such Department.

Thus, whenever “Administrator” appeared, it was replaced by “Secretary” or “Secretary of Labor.” See Sec. 4(a),

“Excerpts From Reorganization Plan No. 6 of 1950, 64 Stat. 1263.”

In cases where annual changes are to be made in provisions, as in the case of the gradual phase-out of exemptions,

the changes are shown immediately following the provision to which they apply and are enclosed in brackets.

The footnotes in this revision show where prior changes have been made and refer to the specific amendments relied

upon so that a comparison may be made with the official text.

This revised text has been approved by the Office of the Solicitor, U.S. Department of Labor.
1

THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED

(29 U.S.C. 201, et seq.)

To provide for the establishment of fair labor standards in

employments in and affecting interstate commerce, and

for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Fair Labor Standards

Act of 1938.”

Finding and Declaration of Policy

SEC. 2. (a) The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of

living necessary for health, efficiency, and general wellbeing of workers (1) causes commerce and the channels

and instrumentalities of commerce to be used to spread

and perpetuate such labor conditions among the workers

of the several States; (2) burdens commerce and the free

flow of goods in commerce; (3) constitutes an unfair method

of competition in commerce; (4) leads to labor disputes

burdening and obstructing commerce and the free flow

of goods in commerce; and (5) interferes with the orderly

and fair marketing of goods in commerce. The Congress

further finds that the employment of persons in domestic service in households affects commerce.

(b) It is hereby declared to be the policy of this Act,

through the exercise by Congress of its power to regulate

commerce among the several States and with foreign nations, to correct and as rapidly as practicable to eliminate

the conditions above referred to in such industries without

substantially curtailing employment or earning power.1

Definitions

SEC. 3. As used in this Act —

(a) “Person” means an individual, partnership, association, corporation, business trust, legal representative, or

any organized group of persons.

(b) “Commerce” means trade, commerce, transportation, transmission, or communication among the several

States or between any State and any place outside thereof.2

(c) “State” means any State of the United States or the

District of Columbia or any Territory or possession of the

United States.

(d) “Employer” includes any person acting directly or

indirectly in the interest of an employer in relation to an employee and includes a public agency,3 but does not

include any labor organization (other than when acting as an

employer) or anyone acting in the capacity of officer or agent

of such labor organization.

(e) (1) Except as provided in paragraphs (2), (3),

and (4), the term “employee” means any individual employed by an employer.

(2) In the case of an individual employed by a public agency, such term means —

(A) any individual employed by the Government of the United States —

(i) as a civilian in the military departments (as defined in section 102 of title

5, United States Code),

(ii) in any executive agency (as defined in section 105 of such title),

(iii) in any unit of the judicial branch

of the Government which has positions in

the competitive service,

(iv) in a nonappropriated fund instrumentality under the jurisdiction of the Armed

Forces,

(v) in the Library of Congress, or

(vi) the Government Printing Office;

(B) any individual employed by the United

States Postal Service or the Postal Rate Commission; and

(C) any individual employed by a State,

political subdivision of a State, or an interstate governmental agency, other than such an individual

—

(i) who is not subject to the civil service laws of the State, political subdivision,

or agency which employs him; and

(ii) who —

(I) holds a public elective office

of that State, political subdivision, or

agency,

(II) is selected by the holder of

such an office to be a member of his personal staff,

1 As amended by section 2 of the Fair Labor Standards Amendments of 1949.

2 As amended by section 3(a) of the Fair Labor Standards Amendments of 1949.

3 Public agencies were specifically excluded from the Act's coverage until the Fair

Labor Standards Amendments of 1966, when Congress extended coverage to

“employees of a State or a political subdivision thereof, employed (1) in a hospital,

institution, or school referred to in the last sentence of subsection (r) of this section,

or (2) in the operation of a railway or carrier referred to in such sentence * * *.”
2

(III) is appointed by such an office holder to serve on a policymaking

level,

(IV) is an immediate adviser to

such an officeholder with respect to the

constitutional or legal powers of his office, or

(V)4 is an employee in the legislative branch or legislative body of that

State, political subdivision, or agency

and is not employed by the legislative

library of such State, political subdivision, or agency.

(3) For purposes of subsection (u), such term does

not include any individual employed by an employer

engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s

immediate family.5

(4)6 (A) The term “employee” does not include

any individual who volunteers to perform services for a public agency which is a State, a

political subdivision of a State, or an interstate

governmental agency, if —

(i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the

services for which the individual volunteered; and

(ii) such services are not the same

type of services which the individual is employed to perform for such public agency.

(B) An employee of a public agency which

is a State, political subdivision of a State, or an

interstate governmental agency may volunteer

to perform services for any other State, political subdivision, or interstate governmental

agency, including a State, political subdivision

or agency with which the employing State, political subdivision, or agency has a mutual aid

agreement.

(5)7 The term “employee” does not include individuals who volunteer their services solely

for humanitarian purposes to private nonprofit food banks and who receive from the

food banks groceries.

(f) “Agriculture” includes farming in all its branches and

among other things includes the cultivation and tillage of

the soil, dairying, the production, cultivation, growing, and

harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of U.S.C. Title 12), the raising

of livestock, bees, furbearing animals, or poultry, and any

practices (including any forestry or lumbering operations)

performed by a farmer or on a farm as an incident to or in

conjunction with such farming operations, including preparation for market, delivery to storage or to market or to

carriers for transportation to market.

(g) “Employ” includes to suffer or permit to work.

(h) “Industry” means a trade, business, industry, or

other activity, or branch or group thereof, in which individuals are gainfully employed.

(i) “Goods” means goods (including ships and marine

equipment), wares, products, commodities, merchandise,

or articles or subjects of commerce of any character, or any

part or ingredient thereof, but does not include goods after

their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.

(j) “Produced” means produced, manufactured, mined,

handled, or in any other manner worked on in any State;

and for the purposes of this Act an employee shall be

deemed to have been engaged in the production of goods if

such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production

thereof, in any State.8

(k) “Sale” or “sell” includes any sale, exchange, contract

to sell, consignment for sale, shipment for sale, or other

disposition.

(l) “Oppressive child labor” means a condition of employment under which (1) any employee under the age of

sixteen years is employed by an employer (other than a

parent or a person standing in place of a parent employing

his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or

mining or an occupation found by the Secretary of Labor

to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or

detrimental to their health or well-being) in any occupation,9

 or (2) any employee between the ages of sixteen and

4 As added by section 5 of the Fair Labor Standards Amendments of 1985, effective April 15, 1986. 5 Similar language was added to the Act by the Fair Labor Standards Amendments of 1966. Those amendments also excluded from the definition of employee

“any individual who is employed by an employer engaged in agriculture if such individual (A) is employed as a hand harvest laborer and is paid on a piece rate basis in

an operation which has been, and is customarily and generally recognized as having

been, paid on a piece rate basis in the region of employment, (B) commutes daily

from his permanent residence to the farm on which he is so employed, and (C) has

been employed in agriculture less than thirteen weeks during the preceding calendar year.” These individuals are now included. 6 As added by section 4(a) of the Fair Labor Standards Amendments of 1985,

effective April 15, 1986. 7 As amended August 7, 1998, Pub. L. 105–221, § 2.

8 As amended by section 3(b) of the Fair Labor Standards Amendments of 1949.

9 As amended by section 3(c) of the Fair Labor Standards Amendments of 1949.

Sec. 3(e)(2)(C)(ii)(III)
3

eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order

declare to be particularly hazardous for the employment of

children between such ages or detrimental to their health

or well-being; but oppressive child labor shall not be deemed

to exist by virtue of the employment in any occupation of

any person with respect to whom the employer shall have

on file an unexpired certificate issued and held pursuant to

regulations of the Secretary of Labor certifying that such

person is above the oppressive child labor age. The Secretary of Labor shall provide by regulation or by order that

the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary

of Labor determines that such employment is confined to

periods which will not interfere with their schooling and to

conditions which will not interfere with their health and

well-being.

(m) “Wage” paid to any employee includes the reasonable cost, as determined by the Secretary of Labor,10 to the

employer of furnishing such employee with board, lodging,

or other facilities, if such board, lodging, or other facilities

are customarily furnished by such employer to his employees: Provided, That the cost of board, lodging or other

facilities shall not be included as a part of the wage paid

to any employee to the extent it is excluded therefrom

under the terms of a bona fide collective-bargaining

agreement applicable to the particular employee: Provided further, That the Secretary is authorized to determine the fair value of such board, lodging, or other facilities for defined classes of employees and in defined

areas, based on average cost to the employer or to groups

of employers similarly situated, or average value to

groups of employees, or other appropriate measures of

fair value. Such evaluations, where applicable and pertinent, shall be used in lieu of actual measure of cost in

determining the wage paid to any employee. In determining the wage an employer is required to pay a tipped

employee, the amount paid such employee by the

employee’s employer shall be an amount equal to —

(1) the cash wage paid such employee which for

purposes of such determination shall be not less than

the cash wage required to be paid such an employee

on August 20, 1996; and

(2) an additional amount on account of the tips

received by such employee which amount is equal to

the difference between the wage specified in paragraph (1) and the wage in effect under section 6(a)(1).

The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding two sentences shall not apply with

respect to any tipped employee unless such employee has

been informed by the employer of the provisions of this

subsection, and all tips received by such employee have

been retained by the employee, except that this subsection

shall not be construed to prohibit the pooling of tips among

employees who customarily and regularly receive tips.11

(n) “Resale” shall not include the sale of goods to be

used in residential or farm building construction, repair, or

maintenance: Provided, That the sale is recognized as a

bona fide retail sale in the industry.12

(o) Hours worked. — In determining for the purposes

of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing

clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom

or practice under a bona fide collective-bargaining agreement applicable to the particular employee.13

(p) “American vessel” includes any vessel which is

documented or numbered under the laws of the United

States.

(q) “Secretary” means the Secretary of Labor.

(r) (1) “Enterprise” means the related activities

performed (either through unified operation or common control) by any person or persons for a common

business purpose, and includes all such activities

whether performed in one or more establishments

or by one or more corporate or other organizational

units including departments of an establishment

operated through leasing arrangements, but shall not

include the related activities performed for such enterprise by an independent contractor. Within the

meaning of this subsection, a retail or service establishment which is under independent ownership shall

not be deemed to be so operated or controlled as to be

other than a separate and distinct enterprise by reason of any arrangement, which includes, but is not

necessarily limited to, an agreement,

(A) that it will sell, or sell only, certain

goods specified by a particular manufacturer,

distributor, or advertiser, or

Sec. 3(l)

10 As amended by Reorganization Plan No. 6 of 1950, set out under section 4(a).

11 As amended by section 2105(b) of the Small Business Job Protection Act of 1996

(110 Stat. 1755). The required cash wage, $2.13, is 50% of the $4.25 minimum wage

specified in section 6(a)(1) on the “date of enactment” of the paragraph, August 20,

1996. Tip credit was restricted to not more than 50% of the minimum wage between

April 1, 1991 and October 1, 1996; 45% between April 1, 1990 and March 31, 1991;

and 40% prior to April 1, 1990.

12 Section 3(d) of the Fair Labor Standards Amendments of 1949. (The original

language of section 3(n) was restored by the Fair Labor Standards Amendments of

1966.)

13 Ibid.
4

(B) is engaged in the operation of a hospital, an institution primarily engaged in the care

of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically

handicapped or gifted children, a preschool, elementary or secondary school, or an institution

of higher education (regardless of whether or

not such hospital, institution, or school is public or private or operated for profit or not for

profit); or

(C) is an activity of a public agency.

(2) Any establishment that has as its only regular employees the owner thereof or the parent,

spouse, child, or other member of the immediate

family of such owner shall not be considered to be

an enterprise engaged in commerce or in the production of goods for commerce or a part of such an

enterprise. The sales of such an establishment shall

not be included for the purpose of determining the

annual gross volume of sales of any enterprise for

the purpose of this subsection.

(t) “Tipped employee” means any employee engaged

in an occupation in which he customarily and regularly

receives more than $30 a month in tips.16

(u) “Man-day” means any day during which an employee performs any agricultural labor for not less than

one hour.

(v) “Elementary school” means a day or residential

school which provides elementary education, as determined under State law.

(w) “Secondary school” means a day or residential

school which provides secondary education, as determined

under State law.

(x) “Public agency” means the Government of the

United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Rate

Commission), a State, or a political subdivision of a

State, or any interstate governmental agency.

(y)17 “Employee in fire protection activities” means

an employee, including a firefighter, paramedic,

emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker,

who —

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire

(B) that it will join with other such establishments in the same industry for the purpose

of collective purchasing, or

(C) that it will have the exclusive right to

sell the goods or use the brand name of a manufacturer, distributor, or advertiser within a specified area, or by reason of the fact that it occupies

premises leased to it by a person who also leases

premises to other retail or service establishments.

(2) For purposes of paragraph (1), the activities

performed by any person or persons —

(A) in connection with the operation of a hospital, an institution primarily engaged in the care

of the sick, the aged, the mentally ill or defective who

reside on the premises of such institution, a school

for mentally or physically handicapped or gifted

children, a preschool,14 elementary or secondary

school, or an institution of higher education (regardless of whether or not such hospital, institution, or

school is operated for profit or not for profit), or

(B) in connection with the operation of a

street, suburban or interurban electric railway, or

local trolley or motorbus carrier, if the rates and

services of such railway or carrier are subject to

regulation by a state or local agency (regardless of

whether or not such railway or carrier is public or

private or operated for profit or not for profit), or

(C) in connection with the activities of a

public agency, shall be deemed to be activities performed for a business purpose.

(s) (1) “Enterprise engaged in commerce or in the

production of goods for commerce” means an enterprise that —

(A) (i) has employees engaged in commerce or in the production of goods for

commerce, or that has employees handling,

selling, or otherwise working on goods or

materials that have been moved in or produced for commerce by any person; and

(ii) is an enterprise whose annual

gross volume of sales made or business

done is not less than $500,000 (exclusive

of excise taxes at the retail level that are

separately stated);15

14 “A preschool” was added by the Education Amendments of 1972. 15 As amended by section 3(a) of the Fair Labor Standards Amendments of 1989.

Prior to April 1, 1990, the dollar volume test for enterprise coverage (except in the case

of an enterprise comprised exclusively of one or more retail or service establishments; or one engaged in construction or reconstruction; or one engaged in laundering, cleaning, or repairing clothing or fabrics; or one described in section 3(s)(1)(B)

or (C)) was $250,000. For retail enterprises, the dollar volume test was $362,500.

There was no dollar volume test for the other enterprises.

16 As amended by section 3(a) of the Fair Labor Standards Amendments of 1977,

effective January 1, 1978. Prior to January 1, 1978, the dollar amount was $20.

17 Added by Public Law 106–151, § 1 (113 Stat. 1731), effective 12/9/99.

Sec. 3(r)(1)(B)
5

suppression, and is employed by a fire department

of a municipality, county, fire district, or State; and

(2) is engaged in the prevention, control, and

extinguishment of fires or response to emergency

situations where life, property, or the environment

is at risk.

Administration18

SEC. 4. (a) There is created in the Department of

Labor a Wage and Hour Division which shall be under the

direction of an Administrator, to be known as the Administrator of the Wage and Hour Division (in this Act referred

to as the “Administrator”). The Administrator shall be

appointed by the President, by and with the advice and

consent of the Senate.19

Excerpts From Reorganization Plan No. 6 of

1950, 64 Stat. 1263

“Except as otherwise provided [with respect to

hearing examiners], there are hereby transferred to the

Secretary of Labor all functions of all other officers of

the Department of Labor and all functions of all agencies and employees of such Department* * *. The Secretary of Labor may from time to time make such provisions as he shall deem appropriate authorizing the

performance by any other officer, or by any agency or

employee, of the Department of Labor of any function

of the Secretary, including any function transferred to

the Secretary by the provisions of this reorganization

plan.”

(b) The Secretary of Labor20 may, subject to the civil

service laws, appoint such employees as he deems necessary to carry out his functions and duties under this Act

and shall fix their compensation in accordance with Chapter 51 and Subchapter III of Chapter 53 of Title 5.

21

The Secretary22 may establish and utilize such regional,

local, or other agencies, and utilize such voluntary and

uncompensated services, as may from time to time be

needed. Attorneys appointed under this section may

appear for and represent the Secretary23 in any litigation,

but all such litigation shall be subject to the direction

and control of the Attorney General. In the appointment,

selection, classification, and promotion of officers and

employees of the Secretary,24 no political test or qualification shall be permitted or given consideration, but all

such appointments and promotions shall be given and

made on the basis of merit and efficiency.

(c) The principal office of the Secretary shall be in the

District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place.

(d) 25The Secretary shall conduct studies on the

justification or lack thereof for each of the special exemptions set forth in section 13 of this Act, and the

extent to which such exemptions apply to employees

of establishments described in subsection (g) of such

section and the economic effects of the application of

such exemptions to such employees. The Secretary

shall submit a report of his findings and recommendations to the Congress with respect to the studies conducted under this paragraph not later than

January 1, 1976.

(e) Whenever the Secretary has reason to believe that

in any industry under this Act the competition of foreign producers in United States markets or in markets

abroad, or both, has resulted, or is likely to result, in

increased unemployment in the United States, he shall

undertake an investigation to gain full information with

respect to the matter. If he determines such increased

unemployment has in fact resulted, or is in fact likely

to result, from such competition, he shall make a full

and complete report of his findings and determinations

to the President and to the Congress: Provided, That

he may also include in such report information on the

increased employment resulting from additional exports

in any industry under this Act as he may determine to

be pertinent to such report.

(f) The Secretary is authorized to enter into an agreement with the Librarian of Congress with respect to

individuals employed in the Library of Congress to

provide for the carrying out of the Secretary’s functions

under this Act with respect to such individuals. Notwithstanding any other provision of this Act, or any

18 Heading revised to reflect changes made by Reorganization Plan No. 6 of 1950. 19 Pursuant to 5 U.S.C. 5316, the Administrator of the Wage and Hour Division is

classified under Level V of the Executive Schedule, for which the annual rate of

basic pay is determined under 2 U.S.C. Chapter 11, as adjusted by 5 U.S.C. 5318.

20 As amended by section 404 of Reorganization Plan No. II of 1939 (53 Stat. 1436)

and by Reorganization Plan No. 6 of 1950 (64 Stat. 1263).

21 Substituted for “the Classification Act of 1949, as amended” (amended by

section 1104 of the Act of October 23, 1949 (63 Stat. 972)) on authority of Pub. L.

89–554, Sec. 7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5.

22 See footnote 20. 23 Ibid.

24 Ibid. 25 The Federal Reports Elimination and Sunset Act of 1995, Pub. L. 104–66,

Dec. 21, 1995, Title I, Sec. 1102(a), 109 Stat. 722, modified the first sentence of

Subsec. (d)(1) by substituting “biennially” and “preceding two years” for “annually”

and “preceding year,” respectively. Then, subsecs. (d)(1) (requiring a report

to the Congress covering the Secretary's activities for the preceding two years

and including such information, data, and recommendations for further legislation

as the Secretary may find advisable) and (d)(3) (requiring a continuing study on

means to prevent curtailment of employment opportunities for groups which have

had historically high incidences of unemployment with reports transmitted to the

Congress at two-year intervals) were terminated effective May 15, 2000. For

termination, effective May 15, 2000, of provisions of law requiring submittal to

Congress of any annual, semiannual, or other regular periodic report listed in

House Document No. 103-7 (in which reports required under paragraphs (1) and

(3) of subsec. (d) of this section are listed on page 124), see Section 3003 of Pub. L. 104–

66, effective Dec. 21, 1995, 109 Stat. 722, as amended, set out as a note under section

1113 of Title 31, Money and Finance.

Sec. 3(y)(1)
6

other law, the Director of the Office of Personnel

Management 26 is authorized to administer the provisions of this Act with respect to any individual employed by the United States (other than an individual

employed in the Library of Congress, United States

Postal Service, Postal Rate Commission, or the Tennessee

Valley Authority). Nothing in this subsection shall be

construed to affect the right of an employee to bring an

action for unpaid minimum wages, or unpaid overtime

compensation, and liquidated damages under section

16(b) of this Act.

Special Industry Committees for

American Samoa

SEC. 5.27 (a) The Secretary of Labor shall as soon as

practicable appoint a special industry committee to recommend the minimum rate or rates of wages to be paid under

section 6 to employees in American Samoa28 engaged in

commerce or in the production of goods for commerce or

employed in any enterprise engaged in commerce or in

the production of goods for commerce, or the Secretary

may appoint separate industry committees to recommend

the minimum rate or rates of wages to be paid under section 6 to employees therein engaged in commerce or in the

production of goods for commerce or employed in any enterprise engaged in commerce or in the production of

goods for commerce in particular industries. An industry

committee appointed under this subsection shall be composed of residents of American Samoa where the employees with respect to whom such committee was appointed

are employed and residents of the United States outside of

American Samoa. In determining the minimum rate or

rates of wages to be paid, and in determining classifications, such industry committees29 shall be subject to the

provisions of section 8.

(b) An industry committee shall be appointed by the

Secretary without any regard to any other provisions of

law regarding the appointment and compensation of employees of the United States. It shall include a number of

disinterested persons representing the public, one of whom

the Secretary shall designate as chairman, a like number

of persons representing employees in the industry, and a

like number representing employers in the industry. In

the appointment of the persons representing each group, the

Secretary shall give due regard to the geographical

regions in which the industry is carried on.

(c) Two-thirds of the members of an industry committee shall constitute a quorum, and the decision of the committee shall require a vote of not less than a majority of all

its members. Members of an industry committee shall receive as compensation for their services a reasonable per

diem, which the Secretary shall by rules and regulations

prescribe, for each day actually spent in the work of the

committee, and shall in addition be reimbursed for their

necessary traveling and other expenses. The Secretary

shall furnish the committee with adequate legal, stenographic, clerical, and other assistance, and shall by rules

and regulations prescribe the procedure to be followed by

the committee.

(d) The Secretary shall submit to an industry committee from time to time such data as he may have available

on the matters referred to it, and shall cause to be brought

before it in connection with such matters any witnesses

whom he deems material. An industry committee may summon other witnesses or call upon the Secretary to furnish

additional information to aid it in its deliberations.

Minimum Wages

SEC. 6. (a) Every employer shall pay to each of his

employees who in any workweek is engaged in commerce

or in the production of goods for commerce, or is employed

in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:

(1) except as otherwise provided in this section,

not less than $4.25 an hour during the period ending

on September 30, 1996, not less than $4.75 an hour

during the year beginning on October 1, 1996, and

not less than $5.15 an hour beginning September 1,

1997; 30

(2) if such employee is a home worker in Puerto

Rico or the Virgin Islands, not less than the minimum

piece rate prescribed by regulation or order; or, if no such

minimum piece rate is in effect, any piece rate adopted

by such employer which shall yield, to the proportion or

class of employees prescribed by regulation or order, not

less than the applicable minimum hourly wage rate. Such

minimum piece rates or employer piece rates shall be

commensurate with, and shall be paid in lieu of, the mini30 As amended by the Minimum Wage Increase Act of 1996 (Section 2104 of the Small

Business Job Protection Act of 1996).

26 The “Director of the Office of Personnel Management” was substituted for

“Civil Service Commission” pursuant to Reorganization Plan No. 2 of 1978 (92 Stat.

3783).

27 Section 5 as amended by section 3(c) of the Act of June 26, 1940 (54 Stat. 615); by

section 5 of the Fair Labor Standards Amendments of 1949; by section 4 of the Fair

Labor Standards Amendments of 1961; by section 5 of the Fair Labor Standards

Amendments of 1974; by section 4(a) of the Fair Labor Standards Amendments of

1989; and as further amended as noted. Paragraphs (b), (c), and (d), (except for the

substitution of “Secretary” for “Administrator”) read as in the original Act.

28 As amended by section 4(a)(1) of the Fair Labor Standards Amendments of 1989.

Prior to November 17, 1989, special industry committee procedures also applied to

Puerto Rico and the Virgin Islands, until such time as the mainland minimum wage

level was reached.

29 As amended by section 5(a) of the Fair Labor Standards Amendments of 1955.

Sec. 4(f)
7

mum hourly wage rate applicable under the provisions

of this section. The Secretary of Labor, or his authorized representative, shall have power to make such regulations or orders as are necessary or appropriate to carry

out any of the provisions of this paragraph, including the

power without limiting the generality of the foregoing,

to define any operation or occupation which is performed

by such home work employees in Puerto Rico or the Virgin Islands; to establish minimum piece rates for any operation or occupation so defined; to prescribe the method

and procedure for ascertaining and promulgating minimum piece rates; to prescribe standards for employer

piece rates, including the proportion or class of employees who shall receive not less than the minimum hourly

wage rate; to define the term “home worker”; and to prescribe the conditions under which employers, agents,

contractors, and subcontractors shall cause goods to be

produced by home workers;31

(3) if such employee is employed in American

Samoa, in lieu of the rate or rates provided by this

subsection or subsection (b), not less than the applicable rate established by the Secretary of Labor in

accordance with recommendations of a special industry committee or committees which he shall appoint

pursuant to sections 5 and 8. The minimum wage

rate thus established shall not exceed the rate prescribed

in paragraph (1) of this subsection; 32

(4) if such employee is employed as a seaman on

an American vessel, not less than the rate which will

provide to the employee, for the period covered by the

wage payment, wages equal to compensation at the

hourly rate prescribed by paragraph (1) of this subsection for all hours during such period when he was actually on duty (including periods aboard ship when the

employee was on watch or was, at the direction of a superior officer, performing work or standing by, but not

including off-duty periods which are provided pursuant to the employment agreement); or

(5) if such employee is employed in agriculture,

not less than the minimum wage rate in effect under

paragraph (1) after December 31, 1977.

(b) Every employer shall pay to each of his employees

(other than an employee to whom subsection (a) (5) applies) who in any workweek is engaged in commerce or

in the production of goods for commerce, or is employed

in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is

brought within the purview of this section by the amendments made to this Act by the Fair Labor Standards

Amendments of 1966, title IX of the Education Amendments of 1972, or the Fair Labor Standards Amendments

of 1974, wages at the following rate: Effective after

December 31, 1977, not less than the minimum wage

rate in effect under subsection (a)(1).

(c) * * * (Repealed)

[Note: Section 6(c), relating to minimum wage

requirements in Puerto Rico, was phased out by section 4(b)(2) of the Fair Labor Standards Amendments of

1989 (103 Stat. 940), which raised the minimum wage

rate for all covered employers in Puerto Rico up to the

rate prescribed by section 6(a)(1), effective no later than

April 1, 1996, and was stricken by the Minimum Wage

Increase Act of 1996 (Section 2104(c) of the Small Business Job Protection Act of 1996).]

(d)33 (1) No employer having employees subject to any

provisions of this section shall discriminate, within

any establishment in which such employees are employed, between employees on the basis of sex by

paying wages to employees in such establishment at

a rate less than the rate at which he pays wages to

employees of the opposite sex in such establishment

for equal work on jobs the performance of which

requires equal skill, effort, and responsibility, and

which are performed under similar working conditions, except where such payment is made pursuant

to (i) a seniority system; (ii) a merit system; (iii) a

system which measures earnings by quantity or quality of production; or (iv) a differential based on any

other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply

with the provisions of this subsection, reduce the wage

rate of any employee.

(2) No labor organization, or its agents, representing employees of an employer having employees

subject to any provisions of this section shall cause

or attempt to cause such an employer to discriminate

against an employee in violation of paragraph (1) of

this subsection.

(3) For purposes of administration and enforcement, any amounts owing to any employee which have

been withheld in violation of this subsection shall be

deemed to be unpaid minimum wages or unpaid overtime compensation under this Act.

33 Subsection (d) added by Equal Pay Act of 1963, 77 Stat. 56 (effective on and after

June 11, 1964 except for employees covered by collective bargaining agreements in

certain cases).

Sec. 6(a)(2)

31 Section 3(f) of the Act of June 26, 1940 (54 Stat. 616). 32 Section 2 of the American Samoa Labor Standards Amendments of 1956, as

amended by section 5 of the Fair Labor Standards Amendments of 1961, and by

section 4(b)(1)(A) of the Fair Labor Standards Amendments of 1989.
8

(4) As used in this subsection, the term “labor

organization” means any organization of any kind,

or any agency or employee representation committee

or plan, in which employees participate and which

exists for the purpose, in whole or in part, of dealing

with employers concerning grievances, labor disputes,

wages, rates of pay, hours of employment, or conditions of work.

(e) (1) Notwithstanding the provisions of section 13

of this Act (except subsections (a)(1) and (f) thereof),

every employer providing any contract services (other

than linen supply services) under a contract with the

United States or any subcontract thereunder shall pay

to each of his employees whose rate of pay is not governed by the Service Contract Act of 1965 (41 U.S.C.

351–357) or to whom subsection (a)(1) of this section is

not applicable, wages at rates not less than the rates provided for in subsection (b) of this section.

(2) Notwithstanding the provisions of section 13

of this Act (except subsections (a)(1) and (f) thereof) and

the provisions of the Service Contract Act of 1965, every

employer in an establishment providing linen supply

services to the United States under a contract with the

United States or any subcontract thereunder shall pay

to each of his employees in such establishment wages at

rates not less than those prescribed in subsection (b),

except that if more than 50 per centum of the gross annual dollar volume of sales made or business done by

such establishment is derived from providing such linen

supply services under any such contracts or subcontracts, such employer shall pay to each of his employees

in such establishment wages at rates not less than those

prescribed in subsection (a)(1) of this section.

(f) Any employee —

(1) who in any workweek is employed in domestic service in a household shall be paid wages at a rate

not less than the wage rate in effect under section 6(b)

unless such employee’s compensation for such service

would not because of section 209(a)(6) of the Social Security Act constitute wages for the purposes of title II of

such Act, or

(2) who in any workweek —

(A) is employed in domestic service in one

or more households, and

(B) is so employed for more than 8 hours in

the aggregate,

shall be paid wages for such employment in such workweek at a rate not less than the wage rate in effect

under section 6(b).

(g)34 (1) In lieu of the rate prescribed by subsection

(a)(1), any employer may pay any employee of such

employer, during the first 90 consecutive calendar days

after such employee is initially employed by such employer, a wage which is not less than $4.25 an hour.

(2) No employer may take any action to displace

employees (including partial displacements such as reduction in hours, wages, or employment benefits) for

purposes of hiring individuals at the wage authorized

in paragraph (1).

(3) Any employer who violates this subsection

shall be considered to have violated section 15(a)(3).

(4) This subsection shall only apply to an employee who has not attained the age of 20 years.

Maximum Hours

SEC. 7.35* (a) (1) Except as otherwise provided in this

section, no employer shall employ any of his employees who

in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods

for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not

less than one and one-half times the regular rate at which

he is employed.

(2) No employer shall employ any of his employees who in any workweek is engaged in commerce or in

the production of goods for commerce, or is employed in

an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweeks

is brought within the purview of this subsection by the

amendments made to this Act by the Fair Labor Standards Amendments of 1966 —

(A) for a workweek longer than forty-four hours

during the first year from the effective date

of the Fair Labor Standards Amendments of 1966,

(B) for a workweek longer than forty-two hours

during the second year from such date, or

(C) for a workweek longer than forty hours

after the expiration of the second year from such

date,

34 Subsection (g) added by section 2105(c) of the Small Business Job Protection

Act of 1996, effective August 20, 1996.

35 Section 7 as amended by section 7 of the Fair Labor Standards Amendments of

1949, and as further amended as noted. Single asterisk (*) indicates provision amended

by the 1949 Act; double asterisk (**) indicates provision added by the 1949

Act. Bold face type indicates amendment made by the Fair Labor Standards Amendments of 1961. Italic type indicates amendment made by the Fair Labor Standards

Amendments of 1966. Bold face italic type indicates amendment made by the Fair

Labor Standards Amendments of 1974. Helvetica boldface type indicates amendment made by the Fair Labor Standards Amendments of 1985. Helvetica boldface

italic type indicates amendment made by the Fair Labor Standards Amendments

of 1989.

Sec. 6(d)(4)
9

unless such employee receives compensation for his

employment in excess of the hours above specified at a

rate not less than one and one-half times the regular

rate at which he is employed.

(b) No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in

excess of that specified in such subsection without paying

the compensation for overtime employment prescribed

therein if such employee is so employed —

*(1) in pursuance of an agreement, made as a result

of collective bargaining by representatives of employees

certified as bona fide by the National Labor Relations

Board, which provides that no employee shall be employed more than one thousand and forty hours during

any period of twenty-six consecutive weeks, or

*(2) in pursuance of an agreement, made as a result

of collective bargaining by representatives of employees

certified as bona fide by the National Labor Relations

Board which provides that during a specified period of

fifty-two consecutive weeks the employee shall be employed not more than two thousand two hundred and forty

hours and shall be guaranteed not less than one thousand eight hundred and forty hours (or not less than fortysix weeks at the normal number of hours worked per

week, but not less than thirty hours per week) and not

more than two thousand and eighty hours of employment

for which he shall receive compensation for all hours guaranteed or worked at rates not less than those applicable

under the agreement to the work performed and for all

hours in excess of the guaranty which are also in excess

of the maximum workweek applicable to such employee under subsection (a) or two thousand and eighty

in such period at rates not less than one and one-half times

the regular rate at which he is employed; or

(3)36 by an independently owned and controlled local enterprise (including an enterprise with more than

one bulk storage establishment) engaged in the wholesale or bulk distribution of petroleum products if —

(A) the annual gross volume of sales of such

enterprise is less than $1,000,000 exclusive of excise taxes,

(B) more than 75 per centum of such enterprise’s annual dollar volume of sales is made within

the State in which such enterprise is located, and

(C) not more than 25 per centum of the annual dollar volume of sales of such enterprise is to

customers who are engaged in the bulk distribution

of such products for resale,

and such employee receives compensation for employment in excess of forty hours in any workweek at a rate

not less than one and one-half times the minimum wage

rate applicable to him under section 6,

and if such employee receives compensation for employment in excess of twelve hours in any workday, or for

employment in excess of fifty-six hours in any workweek,

as the case may be, at a rate not less than one and onehalf times the regular rate at which he is employed.

(c) * * * (Repealed)

[Note: Section 7(c) (relating to employers employing

employees in an industry found by the Secretary to be

of a seasonal nature) was repealed by Section 19 of the

Fair Labor Standards Amendments of 1974, effective

December 31, 1976.]

(d) * * * (Repealed)

[Note: Section 7(d) (relating to employers who do not

qualify for the exemption in subsection (c) who employ

employees in an industry found by the Secretary “(A) to

be characterized by marked annual recurring peaks of

operation * * *, or (B) to be of a seasonal nature and

engaged in the handling, packing, storing, preparing,

first processing, or canning of any perishable agricultural or horticultural commodities in their raw or natural state * * *”) was repealed by Section 19 of the Fair

Labor Standards Amendments of 1974, effective December 31, 1976.]

 **(e) As used in this section the “regular rate” at which

an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the

employee, but shall not be deemed to include —

**(1) sums paid as gifts; payments in the nature of

gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not

measured by or dependent on hours worked, production, or efficiency;

**(2) payments made for occasional periods when

no work is performed due to vacation, holiday, illness,

failure of the employer to provide sufficient work, or other

similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in

the furtherance of his employer’s interests and properly

reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his hours of employment;

**(3) sums paid in recognition of services performed

during a given period if either, (a) both the fact that payment is to be made and the amount of the payment are

determined at the sole discretion of the employer at or

36 Section 212 of the Fair Labor Standards Amendments of 1966 substituted this

provision for the complete exemption from overtime contained in former section

13(b)(10) enacted in the 1961 amendments. Former clause (3) of section 7(b) as

enacted in the 1938 Act was replaced by new section 7(c) as enacted by section 204(c)

of the Fair Labor Standards Amendments of 1966.

Sec. 7(a)(2)
10

near the end of the period and not pursuant to any prior

contract, agreement, or promise causing the employee

to expect such payments regularly; or (b) the payments

are made pursuant to a bona fide profit-sharing plan or

trust or bona fide thrift or savings plan, meeting the requirements of the Secretary of Labor set forth in appropriate regulations which he shall issue, having due

regard among other relevant factors, to the extent to

which the amounts paid to the employee are determined

without regard to hours of work, production, or efficiency;

or (c) the payments are talent fees (as such talent fees

are defined and delimited by regulations of the Secretary) paid to performers, including announcers, on radio and television programs;

**(4) contributions irrevocably made by an employer to a trustee or third person pursuant to a bona

fide plan for providing old-age, retirement, life, accident,

or health insurance or similar benefits for employees;

**(5) extra compensation provided by a premium

rate paid for certain hours worked by the employee in

any day or workweek because such hours are hours

worked in excess of eight in a day or in excess of the

maximum workweek applicable to such employee under subsection (a) or in excess of the employee’s normal

working hours or regular working hours, as the case

may be;

*(6) extra compensation provided by a premium

rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or

seventh day of the workweek, where such premium rate

is not less than one and one-half time the rate established

in good faith for like work performed in nonovertime

hours on other days;37

*(7) extra compensation provided by a premium

rate paid to the employee, in pursuance of an applicable

employment contract or collective-bargaining agreement,

for work outside of the hours established in good faith by

the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek

(not exceeding the maximum workweek applicable to

such employee under subsection (a) of this section),

where such premium rate is not less than one and one-half

times the rate established in good faith by the contract or

agreement for like work performed during such workday

or workweek;38 or

(8)39any value or income derived from

employer-provided grants or rights provided pursuant to a stock option, stock appreciation right,

or bona fide employee stock purchase program

which is not otherwise excludable under any of

paragraphs (1) through (7) if —

(A) grants are made pursuant to a program, the terms and conditions of which are

communicated to participating employees

either at the beginning of the employee’s participation in the program or at the time of the

grant;

(B) in the case of stock options and stock

appreciation rights, the grant or right cannot

be exercisable for a period of at least 6 months

after the time of grant (except that grants or

rights may become exercisable because of an

employee’s death, disability, retirement, or a

change in corporate ownership, or other circumstances permitted by regulation), and the

exercise price is at least 85 percent of the fair

market value of the stock at the time of grant;

(C) exercise of any grant or right is voluntary; and

(D) any determinations regarding the

award of, and the amount of, employerprovided grants or rights that are based on

performance are —

(i) made based upon meeting previously established performance criteria

(which may include hours of work, efficiency, or productivity) of any business

unit consisting of at least 10 employees

or of a facility, except that, any determinations may be based on length of

service or minimum schedule of hours

or days of work; or

(ii) made based upon the past performance (which may include any criteria) of one or more employees in a given

period so long as the determination is in

the sole discretion of the employer and

not pursuant to any prior contract.

**(f) No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in

excess of the maximum workweek applicable to such

employee under subsection (a) if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of

such employee necessitate irregular hours of work, and the

contract or agreement (1) specifies a regular rate of pay of

not less than the minimum hourly rate provided in subsection (a) or (b) of section 6 (whichever may be applicable)

and compensation at not less than one and one-half times

37 Paragraphs (6) and (7) together with section 7(h) continued in effect provisions

of section 1 of the Act of July 20, 1949 (63 Stat. 446), which Act was repealed as of the

effective date of the Fair Labor Standards Amendments of 1949.

38 Ibid. 39 Added by Pub. L. 106-202, § 2(a), May 18, 2000, 114 Stat. 308 (Worker Economic

Opportunity Act), effective August 17, 2000.

Sec. 7(e)(3)
11

such rate for all hours worked in excess of such maximum

workweek, and (2) provides a weekly guaranty of pay for

not more than sixty hours based on the rates so specified.

**(g) No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in

excess of the maximum workweek applicable to such

employee under such subsection if, pursuant to an agreement or understanding arrived at between the employer

and the employee before performance of the work, the

amount paid to the employee for the number of hours

worked by him in such workweek in excess of the maximum workweek applicable to such employee under such

subsection —

(1) in the case of an employee employed at piece

rates, is computed at piece rates not less than one and

one-half times the bona fide piece rates applicable to the

same work when performed during nonovertime hours;

or

(2) in the case of an employee performing two or

more kinds of work for which different hourly or piece

rates have been established, is computed at rates not less

than one and one-half times such bona fide rates applicable to the same work when performed during nonovertime hours; or

(3) is computed at a rate not less than one and onehalf times the rate established by such agreement or

understanding as the basic rate to be used in computing

overtime compensation thereunder: Provided, That the

rate so established shall be authorized by regulation by

the Secretary of Labor as being substantially equivalent to the average hourly earnings of the employee, exclusive of overtime premiums, in the particular work over

a representative period of time;

and if (i) the employee’s average hourly earnings for the

workweek exclusive of payments described in paragraphs

(1) through (7) of subsection (e) are not less than the minimum hourly rate required by applicable law, and (ii) extra

overtime compensation is properly computed and paid on

other forms of additional pay required to be included in

computing the regular rate.

 * (h) (1)40Except as provided in paragraph (2),

sums excluded from the regular rate pursuant to

subsection (e) shall not be creditable toward wages

required under section 6 or overtime compensation required under this section.

(2) Extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) shall be creditable toward overtime compensation payable pursuant

to this section.41

40 Added by Pub. L. 106–202, Sec. 2(b), May 18, 2000, 114 Stat. 308 (Worker

Economic Opportunity Act), effective August 17, 2000.

41 Amendment provided by section 7 of the Fair Labor Standards Amendments of

1949. See also footnote 37.

(i) No employer shall be deemed to have violated subsection (a) by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular

rate of pay of such employee is in excess of one and onehalf times the minimum hourly rate applicable to him

under section 6, and (2) more than half his compensation for a representative period (not less than one

month) represents commissions on goods or services.

In determining the proportion of compensation representing commission, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether

the computed commissions exceed the draw or guarantee.

(j) No employer engaged in the operation of a hospital

or an establishment which is an institution primarily

engaged in the care of the sick, the aged, or the mentally

ill or defective who reside on the premises shall be deemed

to have violated subsection (a) if, pursuant to an agreement or understanding arrived at between the employer

and employee before performance of the work, a work period of fourteen consecutive days is accepted in lieu of the

workweek of seven consecutive days for purposes of overtime computation and if, for his employment in excess of

eight hours in any workday and in excess of eighty hours

in such fourteen-day period, the employee receives compensation at a rate not less than one and one-half times

the regular rate at which he is employed.

(k)42No public agency shall be deemed to have violated

subsection (a) with respect to the employment of any

employee in fire protection activities or any employee

in law enforcement activities (including security personnel in correctional institutions) if —

(1) in a work period of 28 consecutive days the

employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the

average number of hours (as determined by the Secretary pursuant to Section 6(c)(3) of the Fair Labor Standards Amendments of 1974)43 in tours of duty of employees engaged in such activities in work periods of

28 consecutive days in calendar year 1975; or

42 Effective January 1, 1975, the complete overtime exemption provided by section

6(c)(2)(A) of the Fair Labor Standards Amendments of 1974 was replaced by the

more limited exemption in section 7(k). The present overtime standard — the lesser

of 216 hours or the average number of hours (as determined by the Secretary of

Labor) in tours of duty of employees in work periods of 28 consecutive days —

became effective January 1, 1978. During calendar year 1977 the overtime standard

was 216 hours, during 1976 the overtime standard was 232 hours, and during 1975

the overtime standard was 240 hours. The complete overtime exemption remains

applicable only to public agencies employing less than 5 employees in fire protection

or law enforcement activities. See section 13(b)(20), infra.

43 The results of the Secretary's study were published in the Federal Register on

September 8, 1983. The Secretary determined hours standards for law enforcement employees at 171 and for fire protection employees at 212 in a 28-day period

(48 FR 40,518).

Sec. 7(f)
12

(n) In the case of an employee of an employer engaged

in the business of operating a street, suburban or interurban electric railway, or local trolley or motorbus

carrier (regardless of whether or not such railway or carrier is public or private or operated for profit or not for

profit), in determining the hours of employment of such

an employee to which the rate prescribed by subsection

(a) applies there shall be excluded the hours such employee was employed in charter activities by such employer if (1) the employee’s employment in such activities was pursuant to an agreement or understanding

with his employer arrived at before engaging in such

employment, and (2) if employment in such activities is

not part of such employee’s regular employment.

(o)44 (1) Employees of a public agency which is a

State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime

compensation, compensatory time off at a rate not

less than one and one-half hours for each hour of

employment for which overtime compensation is

required by this section.

(2) A public agency may provide compensatory time under paragraph (1) only —

(A) pursuant to —

(i) applicable provisions of a collective bargaining agreement, memorandum

of understanding, or any other agreement

between the public agency and representatives of such employees; or

(ii) in the case of employees not

covered by subclause (i), an agreement or

understanding arrived at between the employer and employee before the performance of the work; and

(B) if the employee has not accrued compensatory time in excess of the limit applicable

to the employee prescribed by paragraph (3).

In the case of employees described in

clause (A)(ii) hired prior to April 15, 1986, the

regular practice in effect on April 15, 1986, with

respect to compensatory time off for such employees in lieu of the receipt of overtime compensation, shall constitute an agreement or

understanding under such clause (A)(ii). Except as provided in the previous sentence, the

provision of compensatory time off to such employees for hours worked after April 14, 1986,

shall be in accordance with this subsection.

(2) in the case of such an employee to whom a

work period of at least 7 but less than 28 days applies,

in his work period the employee receives for tours of

duty which in the aggregate exceed a number of hours

which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower,

the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-half

times the regular rate at which he is employed.

(l) No employer shall employ any employee in domestic service in one or more households for a workweek

longer than forty hours unless such employee receives

compensation for such employment in accordance with

subsection (a).

(m) For a period or periods of not more than fourteen

workweeks in the aggregate in any calendar year, any

employer may employ any employee for a workweek in

excess of that specified in subsection (a) without paying the compensation for overtime employment prescribed in such subsection, if such employee —

(1) is employed by such employer —

(A) to provide services (including stripping

and grading) necessary and incidental to the sale

at auction of green leaf tobacco of type 11, 12, 13,

14, 21, 22, 23, 24, 31, 35, 36, or 37 (as such types are

defined by the Secretary of Agriculture), or in auction sale, buying, handling, stemming, redrying,

packing, and storing of such tobacco.

(B) in auction sale, buying, handling, sorting, grading, packing, or storing green leaf tobacco

of type 32 (as such type is defined by the Secretary of Agriculture), or

(C) in auction sale, buying, handling, stripping, sorting, grading, sizing, packing, or stemming prior to packing, of perishable cigar leaf tobacco of type 41, 42, 43, 44, 45, 46, 51, 52, 53, 54, 55,

61, or 62 (as such types are defined by the Secretary of Agriculture); and

(2) receives for —

(A) such employment by such employer

which is in excess of ten hours in any workday,

and

(B) such employment by such employer

which is in excess of forty-eight hours in any

workweek,

compensation at a rate not less than one and one-half

times the regular rate at which he is employed.

An employer who receives an exemption under this subsection shall not be eligible for any other exemption

under this section. 44 As added by section 2(a) of the Fair Labor Standards Amendments of 1985,

effective April 15, 1986.

Sec. 7(k)(2)
13

(A) such employee is paid at a per-page

rate which is not less than —

(i) the maximum rate established by

State law or local ordinance for the jurisdiction of such public agency,

(ii) the maximum rate otherwise established by a judicial or administrative officer and in effect on July 1, 1995, or

(iii) the rate freely negotiated between

the employee and the party requesting the

transcript, other than the judge who presided over the proceedings being transcribed,

and

(B) the hours spent performing such duties

are outside of the hours such employee performs

other work (including hours for which the agency

requires the employee’s attendance) pursuant to

the employment relationship with such public

agency.

For purposes of this section, the amount paid such

employee in accordance with subparagraph (A) for the

performance of court reporting transcript preparation

duties, shall not be considered in the calculation of the

regular rate at which such employee is employed.

(7)46 For purposes of this subsection —

(A) the term “overtime compensation”

means the compensation required by subsection (a), and

(B) the terms “compensatory time” and

“compensatory time off” mean hours during

which an employee is not working, which are

not counted as hours worked during the applicable workweek or other work period for purposes of overtime compensation, and for which

the employee is compensated at the employee’s

regular rate.

(p)47(1) If an individual who is employed by a State,

political subdivision of a State, or an interstate governmental agency in fire protection or law enforcement activities (including activities of security personnel in correctional institutions) and who, solely

at such individual’s option, agrees to be employed

on a special detail by a separate or independent employer in fire protection, law enforcement, or related

activities, the hours such individual was employed

45 As added by the Court Reporter Fair Labor Amendments of 1995, effective

September 6, 1995 (109 Stat. 264).

46 Redesignated as paragraph (7) of section 7 (o) by the Court Reporter Fair

Labor Amendments of 1995.

47 As added by section 3 of the Fair Labor Standards Amendments of 1985, effective April 15, 1986.

Sec. 7(o)(3)

(3) (A) If the work of an employee for which

compensatory time may be provided included

work in a public safety activity, an emergency

response activity, or a seasonal activity, the employee engaged in such work may accrue not

more than 480 hours of compensatory time for

hours worked after April 15, 1986. If such work

was any other work, the employee engaged in

such work may accrue not more than 240 hours

of compensatory time for hours worked after

April 15, 1986. Any such employee who, after

April 15, 1986, has accrued 480 or 240 hours,

as the case may be, of compensatory time off

shall, for additional overtime hours of work, be

paid overtime compensation.

(B) If compensation is paid to an employee

for accrued compensatory time off, such compensation shall be paid at the regular rate

earned by the employee at the time the employee receives such payment.

(4) An employee who has accrued compensatory time off authorized to be provided under paragraph (1) shall, upon termination of employment,

be paid for the unused compensatory time at a rate

of compensation not less than —

(A) the average regular rate received by

such employee during the last 3 years of the

employee’s employment, or

(B) the final regular rate received by such

employee,

whichever is higher.

(5) An employee of a public agency which is a

State, political subdivision of a State, or an interstate governmental agency —

(A) who has accrued compensatory time

off authorized to be provided under paragraph

(1), and

(B) who has requested the use of such

compensatory time,

shall be permitted by the employee’s employer to

use such time within a reasonable period after making the request if the use of the compensatory time

does not unduly disrupt the operations of the public

agency.

(6)45 The hours an employee of a public agency

performs court reporting transcript preparation duties

shall not be considered as hours worked for the purposes of subsection (a) if —
14

(1) provided to employees who lack a high

school diploma or educational attainment at the

eighth grade level;

(2) designed to provide reading and other

basic skills at an eighth grade level or below; and

(3) does not include job specific training.

Wage Orders in American Samoa

SEC. 849 (a) The policy of this Act with respect to industries or enterprises in American Samoa engaged in

commerce or in the production of goods for commerce is to

reach as rapidly as is economically feasible without substantially curtailing employment the objective of the minimum wage rate which would apply in each such industry under paragraph (1) or (5) of section 6(a) but for

section 6(c).

The Secretary of Labor shall from time to time convene an industry committee or committees, appointed pursuant to section 5, and any such industry committee shall

from time to time recommend the minimum rate or rates

of wages to be paid under section 6 by employers in American Samoa engaged in commerce or in the production of

goods for commerce or in any enterprise engaged in commerce or in the production of goods for commerce in

any such industry or classification therein, and who but

for section 6 (a)(3) would be subject to the minimum

wage requirements of section 6 (a)(1). Minimum rates

of wages established in accordance with this section which

are not equal to the otherwise applicable minimum wage

rate in effect under paragraph (1) or (5) of section 6(a)

shall be reviewed by such a committee once during each

biennial period, beginning with the biennial period commencing July 1, 1958, except that the Secretary,50 in his

discretion, may order an additional review during any such

biennial period.51

(b) Upon the convening of any such industry committee, the Secretary shall refer to it the question of the minimum wage rate or rates to be fixed for such industry. The

industry committee shall investigate conditions in the industry and the committee, or any authorized subcommittee thereof, shall after due notice hear such witnesses and

by such separate and independent employer shall

be excluded by the public agency employing such

individual in the calculation of the hours for which

the employee is entitled to overtime compensation

under this section if the public agency —

(A) requires that its employees engaged

in fire protection, law enforcement, or security

activities be hired by a separate and independent employer to perform the special detail,

(B) facilitates the employment of such

employees by a separate and independent

employer, or

(C) otherwise affects the condition of employment of such employees by a separate and

independent employer.

(2) If an employee of a public agency which

is a State, political subdivision of a State, or an

interstate governmental agency undertakes, on an

occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in a different capacity from any

capacity in which the employee is regularly employed with the public agency, the hours such

employee was employed in performing the different

employment shall be excluded by the public agency

in the calculation of the hours for which the employee is entitled to overtime compensation under

this section.

(3) If an individual who is employed in any capacity by a public agency which is a State, political

subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public

agency and solely at the option of such individual,

to substitute during scheduled work hours for another individual who is employed by such agency

in the same capacity, the hours such employee

worked as a substitute shall be excluded by the public agency in the calculation of the hours for which

the employee is entitled to overtime compensation

under this section.

(q) 48 Any employer may employ any employee for a

period or periods of not more than 10 hours in the

aggregate in any workweek in excess of the maximum

workweek specified in subsection (a) without paying

the compensation for overtime employment prescribed in such subsection, if during such period or

periods the employee is receiving remedial education

that is —

48 As added by section 7 of the Fair Labor Standards Amendments of 1989.

49 Section 8 as amended by section 8 of the Fair Labor Standards Amendments of

1949; by section 7 of the Fair Labor Standards Amendments of 1961; by section 5(d)

of the Fair Labor Standards Amendments of 1974; by section 2(d)(3) of the Fair

Labor Standards Amendments of 1977; by section 4(c) of the Fair Labor Standards

Amendments of 1989; and as further amended as noted. Prior to November 17,

1989, wage order procedures also applied to Puerto Rico and the Virgin Islands until

such time as the mainland minimum wage level was reached. Paragraphs (b), (c),

(d), (e), and (f) as amended by the 1949 Act read substantially the same as paragraphs (b) and (c) (except for the parenthetical reference to the minimum wage rate

provided in section 6(a), (d), (f) and (g) in the original Act).

50 Act of August 25, 1958 (72 Stat. 844). 51 As amended by Act of August 25, 1958 (72 Stat. 844).

Sec. 7(p)(1)
15

receive such evidence as may be necessary or appropriate

to enable the committee to perform its duties and functions under this Act.52 The committee shall recommend to

the Secretary the highest minimum wage rates for the

industry which it determines, having due regard to economic and competitive conditions, will not substantially

curtail employment in the industry, and will not give any

industry in American Samoa a competitive advantage over

any industry in the United States outside of American Samoa; except that the committee shall recommend to the

Secretary the minimum wage rate prescribed in section

6(a) or 6(b), which would be applicable but for section

6(a)(3), unless there is evidence in the record which establishes that the industry, or a predominant portion

thereof, is unable to pay that wage due to such economic

and competitive conditions.53

(c) The industry committee shall recommend such reasonable classifications within any industry as it determines

to be necessary for the purpose of fixing for each classification within such industry the highest minimum wage rate

(not in excess of that in effect under paragraph (1) or (5)

of section 6(a) (as the case may be)) which (1) will not

substantially curtail employment in such classification and

(2) will not give a competitive advantage to any group in

the industry, and shall recommend for each classification

in the industry the highest minimum wage rate which the

committee determines will not substantially curtail employment in such classification. In determining whether such

classification should be made in any industry, in making

such classifications, and in determining the minimum wage

rates for such classifications, no classifications shall be

made, and no minimum wage rate shall be fixed, solely on a

regional basis, but the industry committee54 shall consider

among other relevant factors the following:

(1) competitive conditions as affected by transportation, living, and production costs;

(2) the wages established for work of like or comparable character by collective labor agreements negotiated between employers and employees by representatives

of their own choosing; and

(3) the wages paid for work of like or comparable

character by employers who voluntarily maintain minimum wage standards in the industry.

No classification shall be made under this section on the

basis of age or sex.

(d) The industry committee shall file with the Secretary

a report containing its findings of fact and recommendations with respect to the matters referred to it. Upon the

filing of such report, the Secretary shall publish such recommendations in the Federal Register and shall provide

by order that the recommendations contained in such report shall take effect upon the expiration of 15 days after

the date of such publication.55

(e) Orders issued under this section shall define the industries and classifications therein to which they are to apply, and shall contain such terms and conditions as the Secretary finds necessary to carry out the purposes of such

orders, to prevent the circumvention or evasion thereof,

and to safeguard the minimum wage rates established

therein.56

(f) Due notice of any hearing provided for in this section shall be given by publication in the Federal Register

and by such other means as the Secretary deems reasonably calculated to give general notice to interested persons.

Attendance of Witnesses

SEC. 9. For the purpose of any hearing or investigation

provided for in this Act, the provisions of section 9 and 10

(relating to the attendance of witnesses and the production

of books, papers and documents) of the Federal Trade Commission Act of September 16, 1914 as amended (U.S.C., 1934

edition, title 15, sec. 49 and 50), are hereby made applicable to the jurisdiction, powers, and duties of the Secretary of Labor and the industry committees.

Court Review

SEC. 10.57 (a) Any person aggrieved by an order of the

Secretary issued under section 8 may obtain a review of

such order in the United States Court of Appeals for any

circuit wherein such person resides or has his principal place

of business, or in the United States Court of Appeals for

the District of Columbia, by filing in such court, within 60

days after the entry of such order a written petition praying that the order of the Secretary be modified or set aside

in whole or in part. A copy of such petition shall forthwith

be transmitted by the clerk of the court to the Secretary,

and thereupon the Secretary shall file in the court the record

of the industry committee upon which the order complained

of was entered, as provided in section 2112 of title 28, United

States Code. Upon the filing of such petition such court

shall have exclusive jurisdiction to affirm, modify (including

provision for the payment of an appropriate mini52 As amended by section 5(b) of the Fair Labor Standards Amendments of 1955. 53 As amended by section 1 of the Act of November 15, 1990. 54 As amended by sections 5(c) and 5(d) of the Fair Labor Standards Amendments

of 1955 (eliminating review by the Secretary of Labor of the recommendations of the

industry committee).

55 Ibid. 56 As amended by section 5(e) of the Fair Labor Standards Amendments of 1955. 57 Section 10(a) as amended by section 5(f) of the Fair Labor Standards Amendments

of 1955, and as further amended as noted.

Sec. 8(b)
16

mum wage rate), or set aside such order in whole or in

part, so far as it is applicable to the petitioner.58 The review

by the court shall be limited to questions of law, and findings of fact by such industry committee when supported

by substantial evidence shall be conclusive. No objection

to the order of the Secretary shall be considered by the

court unless such objection shall have been urged before

such industry committee or unless there were reasonable

grounds for failure so to do. If application is made to the

court for leave to adduce additional evidence, and it is shown

to the satisfaction of the court that such additional evidence

may materially affect the result of the proceeding and that

there were reasonable grounds for failure to adduce such

evidence in the proceedings before such industry committee, the court may order such additional evidence to be

taken before an industry committee and to be adduced upon

the hearing in such manner and upon such terms and conditions as to the court may seem proper. Such industry

committee may modify the initial findings by reason of the

additional evidence so taken, and shall file with the court

such modified or new findings which if supported by substantial evidence shall be conclusive, and shall also file its

recommendation, if any, for the modification or setting aside

of the original order. The judgment and decree of the court

shall be final, subject to review by the Supreme Court of

the United States upon certiorari or certification as provided in section 1254 of title 28 of the United States Code.

(b) the commencement of proceedings under subsection

(a) shall not, unless specifically ordered by the court, operate as a stay of the Secretary’s order. The court shall not

grant any stay of the order unless the person complaining

of such order shall file in court an undertaking with a surety

or sureties satisfactory to the court for the payment to the

employees affected by the order, in the event such order is

affirmed, of the amount by which the compensation such

employees are entitled to receive under the order exceeds

the compensation they actually receive while such stay is

in effect.

Investigations, Inspections, Records, and

Homework Regulations

SEC. 11. (a) The Secretary of Labor or his designated

representatives may investigate and gather data regarding

the wages, hours, and other conditions and practices of employment in any industry subject to this Act, and may enter

and inspect such places and such records (and make such

transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters

as he may deem necessary or appropriate to determine

whether any person has violated any provision of this Act,

or which may aid in the enforcement of the provisions of

this Act. Except as provided in section 12 and in subsection (b) of this section, the Secretary shall utilize the bureaus and divisions of the Department of Labor for all the

investigations and inspections necessary under this section.

Except as provided in section 12, the Secretary shall bring

all actions under section 17 to restrain violations of this Act.

(b) With the consent and cooperation of State agencies

charged with the administration of State labor laws, the

Secretary of Labor may, for the purpose of carrying out

his functions and duties under this Act, utilize the services

of State and local agencies and their employees and, notwithstanding any other provision of law, may reimburse

such State and local agencies and their employees for services rendered for such purposes.

(c) Every employer subject to any provision of this Act

or of any order issued under this Act shall make, keep, and

preserve such records of the persons employed by him and

of the wages, hours, and other conditions and practices of

employment maintained by him, and shall preserve such

records for such periods of time, and shall make such reports therefrom to the Secretary as he shall prescribe by

regulation or order as necessary or appropriate for the enforcement of the provisions of this Act or the regulations

or orders thereunder. The employer of an employee

who performs substitute work described in section

7(p)(3) may not be required under this subsection to

keep a record of the hours of the substitute work.59

(d) The Secretary is authorized to make such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to

prevent the circumvention or evasion of and to safeguard

the minimum wage rate prescribed in this Act, and all

existing regulations or orders of the Administrator relating to industrial homework are hereby continued in full

force and effect.60

Child Labor Provisions

SEC. 12. (a) No producer, manufacturer, or dealer shall

ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States in

or about which within thirty days prior to the removal of

such goods therefrom any oppressive child labor has been

employed: Provided, That any such shipment or delivery

for shipment of such goods by a purchaser who acquired

them in good faith in reliance on written assurance from

the producer, manufacturer, or dealer that the goods were

produced in compliance with the requirements of this sec59 Added by section 3(c)(2) of the Fair Labor Standards Amendments of 1985,

effective April 15, 1986.

60 Section 9 of the Fair Labor Standards Amendments of 1949, as amended by

Reorganization Plan No. 6 of 1950.

Sec. 10(a)

58 Section 22 of the Act of August 28, 1958 (72 Stat. 948).
17

tion, and who acquired such goods for value without notice

of any such violation, shall not be deemed prohibited by

this subsection: And provided further, That a prosecution and conviction of a defendant for the shipment or

delivery for shipment of any goods under the conditions

herein prohibited shall be a bar to any further prosecution

against the same defendant for shipments or deliveries for

shipment of any such goods before the beginning of said

prosecution.61

(b) The Secretary of Labor, or any of his authorized

representatives, shall make all investigations and inspections under section 11(a) with respect to the employment

of minors, and, subject to the direction and control of the

Attorney General, shall bring all actions under section 17

to enjoin any act or practice which is unlawful by reason

of the existence of oppressive child labor, and shall administer all other provisions of this Act relating to oppressive

child labor.

(c) No employer shall employ any oppressive child labor in commerce or in the production of goods for commerce or in any enterprise engaged in commerce or in

the production of goods for commerce.62

(d) In order to carry out the objectives of this section, the Secretary may by regulation require employers to obtain from any employee proof of age.

Exemptions

SEC. 13.63 (a) The provisions of sections 6 (except section 6(d) in the case of paragraph (1) of this subsection)64

and 7 shall not apply with respect to —

(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic

administrative personnel or teacher in elementary or

secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from

time to time by regulations of the Secretary, subject

to the provisions of Subchapter II of Chapter 5 of

Title 5,65 except that an employee of a retail or service

establishment shall not be excluded from the definition of employee employed in a bona fide executive

or administrative capacity because of the number of

hours in his workweek which he devotes to activities

not directly or closely related to the performance

of executive or administrative activities, if less than

40 per centum of his hours worked in the workweek

are devoted to such activities); or

(2) * * * (Repealed)

[Note: Section 13(a)(2) (relating to employees employed by certain retail or service establishments)

was repealed, effective April 1, 1990, by section 3(c)(1)

of the Fair Labor Standards Amendments of 1989.]

(3) any employee employed by an establishment

which is an amusement or recreational establishment,

organized camp, or religious or non-profit educational

conference center,66 if (A) it does not operate for more

than seven months in any calendar year, or (B) during

the preceding calendar year, its average receipts for any

six months of such year were not more than 33 1/3 per

centum of its average receipts for the other six months

of such year, except that the exemption from sections 6

and 7 provided by this paragraph does not apply with

respect to any employee of a private entity engaged in

providing services or facilities (other than, in the case

of the exemption from section 6, a private entity engaged

in providing services and facilities directly related to skiing) in a national park or a national forest or on land in

the National Wildlife Refuge System, under a contract

with the Secretary of the Interior or the Secretary of

Agriculture;67 or

(4) * * * (Repealed)

[Note: Section 13(a)(4) (relating to employees employed by certain retail establishments) was repealed, effective April 1, 1990, by section 3(c)(1) of

the Fair Labor Standards Amendments of 1989.]

(5) any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming

of any kind of fish, shellfish, crustacea, sponges,

seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to,

or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee; or

(6) any employee employed in agriculture (A) if

such employee is employed by an employer who did not,

during any calendar quarter during the preceding calendar year, use more than five hundred man-days of

agricultural labor, (B) if such employee is the parent,

61 As amended by section 10(a) of the Fair Labor Standards Amendments of 1949. 62 Section 10(b) of the Fair Labor Standards Amendments of 1949 as amended by

section 8 of the Fair Labor Standards Amendments of 1961.

63 Section 13 as amended by section 11 of the Fair Labor Standards Amendments

of 1949; by Reorganization Plan no. 6 of 1950; and as further amended by the Fair

Labor Standards Amendments of 1961, 1966, 1974, 1977, and 1989.

64 As amended by the Education Amendments of 1972, 86 Stat. 235 at 375, effective

July 1, 1972.

65 Substituted for “the Administrative Procedure Act” on authority of Pub. L.

89–554, § 7(b), Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5,

Government Organization and Employees.

66 Added by section 11 of the Fair Labor Standards Amendments of 1977, effective

November 1, 1977.

67 The last clause of section 13(a)(3) of the Act was added by section 4(a) of the Fair

Labor Standards Amendments of 1977, effective January 1, 1978. See also section

13(b)(29) of the Act, as added by the 1977 Amendments.

Sec. 12(a)
18

(12) any employee employed as a seaman on a

vessel other than an American vessel; or

(13) * * * (Repealed)

[Note: Section 13(a)(13) (relating to small logging crews) was repealed by section 23 of the Fair Labor Standards Amendments of 1974. The 1974 amendments created an exemption for such employees from

the overtime provisions only in Section 13(b)(28).]

(14) * * * (Repealed)

[Note: Section 13(a)(14) (relating to employees

employed in growing and harvesting of shade grown

tobacco) was repealed by section 9 of the Fair Labor

Standards Amendments of 1974. The 1974 amendments

created an exemption for certain tobacco producing

employees from the overtime provisions only in section 13(b)(22). The section 13(b)(22) exemption was

repealed, effective January 1, 1978, by section 5 of the

Fair Labor Standards Amendments of 1977.]

(15) any employee employed on a casual basis in

domestic service employment to provide babysitting

services or any employee employed in domestic service employment to provide companionship services

for individuals who (because of age or infirmity) are

unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary);

or

(16)70 a criminal investigator who is paid availability pay under section 5545a of Title 5, United States

Code; or

(17)71 any employee who is a computer systems

analyst, computer programmer, software engineer, or

other similarly skilled worker, whose primary duty is —

(A) the application of systems analysis techniques and procedures, including consulting with

users, to determine hardware, software, or system

functional specifications;

(B) the design, development, documentation, analysis, creation, testing, or modification of

computer systems or programs, including prototypes, based on and related to user or system

design specifications;

(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D) a combination of duties described in

sub-paragraphs (A), (B), and (C) the performance

of which requires the same level of skills, and

68 Prior to the Fair Labor Standards Amendments of 1966, the section 13(a)(6)

exemption was applicable to all agricultural employees.

69 As amended by the Fair Labor Standards Amendments of 1966 (which deleted

the words “printed and” which formerly preceded the word “published”).

spouse, child, or other member of his employer’s immediate family, (C) if such employee (i) is employed as a

hand harvest laborer and is paid on a piece rate basis in

an operation which has been, and is customarily and

generally recognized as having been, paid on a piece rate

basis in the region of employment, (ii) commutes daily

from his permanent residence to the farm on which he

is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year, (D) if such employee (other than an employee

described in clause (C) of this subsection) (i) is sixteen

years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation

which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the

region of employment, (ii) is employed on the same farm

as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees

over age sixteen are paid on the same farm, or (E) if

such employee is principally engaged in the range production of livestock;68 or

(7) any employee to the extent that such employee is exempted by regulations, order, or certificate

of the Secretary issued under section 14; or

 (8)69 any employee employed in connection with

the publication of any weekly, semi-weekly, or daily

newspaper with a circulation of less than four thousand the major part of which circulation is within

the county where published or counties contiguous

thereto; or

 (9) * * * (Repealed)

[Note: Section 13(a)(9) (relating to motion picture theater employees) was repealed by section 23 of

the Fair Labor Standards Amendments of 1974. The

1974 amendments created an exemption for such employees from the overtime provisions only in section

13(b)(27).]

(10) any switchboard operator employed by an independently owned public telephone company which

has not more than seven hundred and fifty stations;

or

(11) * * * (Repealed)

[Note: Section 13(a)(11) (relating to telegraph

agency employees) was repealed by section 10 of the

Fair Labor Standards Amendments of 1974. The 1974

amendments created an exemption from the overtime

provisions only in section 13(b)(23), which was repealed effective May 1, 1976.]

Sec. 13(a)(6)

70 Added by section 633(d)(1) of Public Law 103–329 (108 Stat. 2428), effective

September 30, 1994.

71 Added by section 2105(a) of the Small Business Job Protection Act of 1996,

effective August 20, 1996, Pub. L. 104–188, 110 Stat. 1755.
19

who, in the case of an employee who is compensated

on an hourly basis, is compensated at a rate of not

less than $27.63 an hour.

(b) The provisions of section 7 shall not apply with

respect to —

(1) any employee with respect to whom the Secretary of Transportation72 has power to establish

qualifications and maximum hours of service pursuant

to the provisions of section 31502 of Title 4973; or

(2) any employee of an employer engaged in the

operation of a rail carrier subject to part A of Subtitle IV of Title 49;74 or

 (3) any employee of a carrier by air subject to

the provisions of title II of the Railway Labor Act; or

 (4) * * * (Repealed)

[Note: Section 13(b)(4) (relating to employees in

the canning, processing, marketing, freezing, curing,

storing, packing for shipment, or distributing of any

kind of fish, shellfish, or other aquatic forms of animal or vegetable life, or any byproduct thereof) was

repealed, effective May 1, 1976, by section 11 of the Fair

Labor Standards Amendments of 1974.]

 (5) any individual employed as an outside buyer

of poultry, eggs, cream, or milk, in their raw or natural state; or

 (6) any employee employed as a seaman; or

 (7) * * * (Repealed)

[Note: Section 13(b)(7) (relating to any driver,

operator, or conductor employed by an employer engaged in the business of operating a street, suburban

or interurban electric railway, or local trolley or

motorbus carrier) was repealed, effective May 1, 1976,

by section 21 of the Fair Labor Standards Amendments

of 1974.75]

 (8) * * * (Repealed)

[Note: Section 13(b)(8) (relating to any employee

employed by a hotel, motel, or restaurant) was repealed, effective January 1, 1979, by section 14 of the

Fair Labor Standards Amendments of 1977.]

 (9) any employee employed as an announcer,

news editor, or chief engineer by a radio or television

station the major studio of which is located (A) in a

city or town of one hundred thousand population or

less, according to the latest available decennial census figures as compiled by the Bureau of the Census,

except where such city or town is part of a standard

metropolitan statistical area, as defined and designated by the Office of Management and Budget,

76

which has a total population in excess of one hundred

thousand, or (B) in a city or town of twenty-five thousand population or less, which is part of such an area

but is at least 40 airline miles from the principal city

in such area; or

(10) (A) any salesman, partsman, or mechanic

primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed

by a nonmanufacturing establishment primarily

engaged in the business of selling such vehicles or

implements to ultimate purchasers; or

(B) any salesman primarily engaged in selling trailers, boats, or aircraft, if he is employed

by a nonmanufacturing establishment primarily

engaged in the business of selling trailers, boats,

or aircraft to ultimate purchasers;77 or

(11) any employee employed as a driver or driver’s

helper making local deliveries, who is compensated

for such employment on the basis of trip rates, or other

delivery payment plan, if the Secretary shall find that

such plan has the general purpose and effect of reducing hours worked by such employees to, or below,

the maximum workweek applicable to them under section 7(a); or

(12) any employee employed in agriculture or in

connection with the operation or maintenance of ditches,

canals, reservoirs, or waterways, not owned or operated

for profit, or operated on a sharecrop basis, and which

72 As amended by the Department of Transportation Act, 80 Stat. 931, which substituted “Secretary of Transportation” for “Interstate Commerce Commission.”

73 Section 204 of the original Motor Carrier Act, 1935, is now codified at 49 U.S.C.

31502. “Section 31502 of Title 49” was substituted for “section 3102 of Title 49”

on authority of Pub. L. 103-272, §§ 1(c), (e), 6(b), July 5, 1994, 108 Stat. 745, 862,

1029, 1378, the first section of which enacted Subtitle VI (section 30101 et seq.)

of Title 49, Transportation. Previously, “section 3102 of Title 49” had been substituted for “section 204 of the Motor Carrier Act, 1935 [49 U.S.C.A. § 304],

“on authority of Pub. L. 97-449, § 6(b), Jan. 12, 1983, 96 Stat. 2443, the first section

of which enacted subtitle I (section 101 et seq.) and Chapter 31 (section 3101 et seq.)

of subtitle II of Title 49, Transportation.

74 Pub. L. 104-88, Title III, § 340, 12/29/95, 109 Stat. 955, substituted “rail carrier

subject to Part A of Subtitle IV of Title 49” for “common carrier by rail and subject

to the provisions of Part I of the Interstate Commerce Act.” “Subchapter I of Chapter 105 of Title 49” substituted for “Part I of the Interstate Commerce Act [49 U.S.C.A.

§ 1 et seq.]” on authority of section 3(b) of Pub. L. 95-473, Oct. 17, 1978, 92 Stat. 1466,

the first section of which enacted subtitle IV (section 10101 et seq.) of Title 49.

75 Prior to the Fair Labor Standards Amendments of 1966, employees of local

transit companies were exempt from both the Act's minimum wage and overtime

requirements.

76 Section 102 of Reorganization Plan No. 2 of 1970 redesignated Bureau of the

Budget as Office of Management and Budget.

77 Boats were added by the Fair Labor Standards Amendments of 1974. Prior to

these Amendments, the overtime exemption in subsection (B) also applied to partsmen

and mechanics. An earlier minimum wage exemption for any employee of a retail or

service establishment which is primarily engaged in the business of selling automobiles, trucks or farm implements was repealed by the Fair Labor Standards

Amendments of 1966.

Sec. 13(a)(17)(D)
20

ing of food or beverages for human consumption, either on the premises, or by such services as catering,

banquet, box lunch, or curb or counter service, to the

public, to employees, or to members or guests of members of clubs) was repealed, effective May 1, 1976, by

section 15 of the Fair Labor Standards Amendments

of 1974.] 84

(19) * * * (Repealed)

[Note: Section 13(b)(19) (relating to any employee

of a bowling establishment) was repealed, effective

May 1, 1976, by section 16 of the Fair Labor Standards

Amendments of 1974.]

(20) any employee of a public agency who in any

workweek is employed in fire protection activities or

any employee of a public agency who in any workweek is

employed in law enforcement activities (including security personnel in correctional institutions), if the

public agency employs during the workweek less than 5

employees in fire protection or law enforcement activities, as the case may be; 85 or

[Note: Section 6(c)(3) of the Fair Labor Standards

Amendments of 1974 provided as follows: “The Secretary of Labor shall in the calendar year beginning

January 1, 1976, conduct (A) a study of the average

number of hours in tours of duty in work periods in

the preceding calendar year of employees (other than

employees exempt from section 7 of the Fair Labor

Standards Act of 1938 by section 13(b)(20) of such Act)

of public agencies who are employed in fire protection

activities, and (B) a study of the average number of

hours in tours of duty in work periods in the preceding calendar year of employees (other than employees

exempt from section 7 of the Fair Labor Standards Act

of 1938 by section 13(b)(20) of such Act) of public agencies who are employed in law enforcement activities

(including security personnel in correctional institutions). The Secretary shall publish the results of each

such study in the Federal Register.” The results of the

Secretary’s study were published in the Federal Register on September 8, 1983. The Secretary determined

hours standards for law enforcement employees at 171

and for fire protection employees at 212 in a 28-day

period (48 FR 40,518).]

(21) any employee who is employed in domestic

service in a household and who resides in such household; or

78 A minimum wage exemption for these employees was repealed by the Fair

Labor Standards Amendments of 1966. Pub. L. 105–78, Title I § 105, effective

11/13/97, substituted “water at least 90% of which was ultimately delivered for

agricultural purposes during the preceding calendar year,” for “water for agricultural purposes.”

79 A minimum wage exemption for these employees was repealed by the Fair

Labor Standards Amendments of 1966.

80 Ibid. 81 The exemption applicable to the ginning of cotton and the processing of sugar

beets and sugar cane was deleted from section 13(b)(15) by the Fair Labor Standards Amendments of 1974 and provision was made for such employees in sections

13(b)(25) and 13(b)(26). The exemptions in sections 13(b)(25) and 13(b)(26) were

repealed, effective January 1, 1978, by the Fair Labor Standards Amendments of

1977, and provision was made for such employees in sections 13(i) and 13(j), which

were added to the Act by those Amendments.

82 See footnote 79. 83 Ibid.

84 Ibid. 85 Prior to January 1, 1975, section 13(b)(20) exempted “any employee of a public

agency who is employed in fire protection or law enforcement activities (including

security personnel in correctional institutions).” A partial overtime exemption for

public agencies having 5 or more such employees is provided by section 7(k) of the

Act.

Sec. 13(b)(12)

are used exclusively for supply and storing of water

at least 90 percent of which was ultimately delivered for agricultural purposes during the preceding calendar year;78 or

(13) any employee with respect to his employment

in agriculture by a farmer, notwithstanding other employment of such employee in connection with livestock

auction operations in which such farmer is engaged as

an adjunct to the raising of livestock, either on his own

account or in conjunction with other farmers, if such

employee (A) is primarily employed during his workweek in agriculture by such farmer, and (B) is paid for

his employment in connection with such livestock auction operations at a wage rate not less than that prescribed by section 6(a)(1);79 or

(14) any employee employed within the area of production (as defined by the Secretary) by an establishment commonly recognized as a country elevator, including such an establishment which sells products and

services used in the operation of a farm, if no more than

five employees are employed in the establishment in such

operations;80 or

(15) any employee engaged in the processing of

maple sap into sugar (other than refined sugar) or

syrup;81 or

(16) any employee engaged (A) in the transportation and preparation for transportation of fruits and

vegetables, whether or not performed by the farmer, from

the farm to a place of first processing or first marketing

within the same State, or (B) in transportation, whether

or not performed by the farmer, between the farm and any

point within the same State of persons employed or to be

employed in the harvesting of fruits or vegetables;82 or

(17) any driver employed by an employer engaged in

the business of operating taxicabs;83 or

(18) * * * (Repealed)

[Note: Section 13(b)(18) (relating to any employee

of a retail or service establishment who is employed

primarily in connection with the preparation or offer-
21

(22) * * * (Repealed)

[Note: Section 13(b)(22) (relating to employees employed in the growing and harvesting of shade grown

tobacco86) was repealed, effective January 1, 1978, by

section 5 of the Fair Labor Standards Amendments of

1977.]

(23) * * * (Repealed)

[Note: Section 13(b)(23) (relating to any employee

or proprietor in a retail or service establishment which

qualifies as an exempt retail or service establishment

under section 13(a)(2), who is engaged in handling

telegraphic messages for the public 87) was repealed,

effective May 1, 1976, by section 10 of the Fair Labor

Standards Amendments of 1974.]

(24) any employee who is employed with his

spouse by a non-profit educational institution to serve

as the parents of children —

(A) who are orphans or one of whose natural parents is deceased, or 88

(B) who are enrolled in such institution and

reside in residential facilities of the institution,

while such children are in residence at such institution, if such employee and his spouse reside in such

facilities, receive, without cost, board and lodging from

such institution, and are together compensated, on a

cash basis, at an annual rate of not less than $10,000; or

(25) * * * (Repealed)

[Note: Section 13(b)(25) (relating to any employee

engaged in ginning cotton for market in any place of

employment located in a county where cotton is grown

in commercial quantities89) was repealed by section 6(a)

of the Fair Labor Standards Amendments of 1977, and

is replaced by new section 13(i), added by section 6(b)

of those Amendments, which provides a more limited

overtime exemption for such employees. Both changes

were effective January 1, 1978.]

(26) * * * (Repealed)

[Note: Section 13(b)(26) (relating to any employee

who is engaged in the processing of sugar beets, sugar

beet molasses, or sugarcane into sugar (other than refined sugar) or syrup was repealed by section 7(a) of

the Fair Labor Standards Amendments of 1977, and is

replaced by new section 13(j), added by section 7(b) of

those Amendments, which provides a more limited overtime exemption for such employees. Both changes were

effective January 1, 1978.]

(27) any employee employed by an establishment

which is a motion picture theater;90 or

(28) any employee employed in planting or tending trees, cruising, surveying, or felling timber, or in

preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other

transportation terminal, if the number of employees

employed by his employer in such forestry or lumbering operations does not exceed eight;91 or

(29)92 any employee of an amusement or recreational establishment located in a national park or national forest or on land in the National Wildlife Refuge

System if such employee (A) is an employee of a private entity engaged in providing services or facilities in

a national park or national forest, or on land in the National Wildlife Refuge System, under a contract with the

Secretary of the Interior or the Secretary of Agriculture,

and (B) receives compensation for employment in excess of fifty-six hours in any workweek at a rate not less

than one and one-half times the regular rate at which

he is employed; or

(30)93 a criminal investigator who is paid availability pay under section 5545a of Title 5, United States

Code.

(c) (1) Except as provided in paragraphs (2) or

(4), the provisions of section 12 relating to child labor

shall not apply to any employee employed in agriculture outside of school hours for the school district where

such employee is living while he is so employed, if such

employee —

(A) is less than twelve years of age and (i)

is employed by his parent, or by a person standing in the place of his parent, on a farm owned or

operated by such parent or person, or (ii) is employed, with the consent of his parent or person

standing in the place of his parent, on a farm, none

of the employees of which are (because of section

13(a)(6)(A)) required to be paid at the wage rate

prescribed by section 6(a)(5),

(B) is twelve years or thirteen years of age

and (i) such employment is with the consent of

his parent or person standing in the place of his

90 A minimum wage exemption for these employees was repealed by the Fair Labor

Standards Amendments of 1974.

91 Ibid. 92 Added by section 4(b) of the Fair Labor Standards Amendments of 1977,

effective January 1, 1978.

93 Added by section 633(d) of Public Law 103–329 (108 Stat. 2428), effective

September 30, 1994.

Sec. 13(b)(22)

86 A minimum wage exemption for these employees was repealed by the Fair

Labor Standards Amendments of 1974.

87 Ibid. 88 120 Cong. Rec. H8600 (March 28, 1974; statement of Congressman Dent)

indicates that the word “and” was intended in place of “or.”

89 A minimum wage exemption for these employees was repealed by the Fair

Labor Standards Amendments of 1966.
22

parent, or (ii) his parent or such person is employed on the same farm as such employee, or

(C) is fourteen years of age or older.

(2) The provisions of section 12 relating to child

labor shall apply to an employee below the age of sixteen

employed in agriculture in an occupation that the Secretary of Labor finds and declares to be particularly hazardous for the employment of children below the age of

sixteen, except where such employee is employed by his

parent or by a person standing in the place of his parent

on a farm owned or operated by such parent or person.

 (3) The provisions of section 12 relating to child

labor shall not apply to any child employed as an actor

or performer in motion pictures or theatrical productions, or in radio or television productions.

(4)94 (A) An employer or group of employers may

apply to the Secretary for a waiver of the application

of section 12 to the employment for not more than

eight weeks in any calendar year of individuals who

are less than twelve years of age, but not less than

ten years of age, as hand harvest laborers in an

agricultural operation which has been, and is customarily and generally recognized as being, paid

on a piece rate basis in the region in which such

individuals would be employed. The Secretary may

not grant such a waiver unless he finds, based on

objective data submitted by the applicant, that —

(i) the crop to be harvested is one with

a particularly short harvesting season and the

application of section 12 would cause severe

economic disruption in the industry of the employer or group of employers applying for the

waiver;

(ii) the employment of the individuals to

whom the waiver would apply would not be deleterious to their health or well-being;

(iii) the level and type of pesticides and

other chemicals used would not have an adverse effect on the health or well-being of the

individuals to whom the waiver would apply;

(iv) individuals age twelve and above are

not available for such employment; and

(v) the industry of such employer or

group of employers has traditionally and substantially employed individuals under twelve

years of age without displacing substantial job

opportunities for individuals over sixteen years

of age.

(B) Any waiver granted by the Secretary under subparagraph (A) shall require that —

(i) the individuals employed under such

waiver be employed outside of school hours

for the school district where they are living while

so employed;

(ii) such individuals while so employed

commute daily from their permanent residence

to the farm on which they are so employed;

and

(iii) such individuals be employed under

such waiver (I) for not more than eight weeks

between June 1 and October 15 of any calendar year, and (II) in accordance with such other

terms and conditions as the Secretary shall

prescribe for such individuals’ protection.

(5)95 (A) In the administration and enforcement

of the child labor provisions of this Act, employees

who are 16 and 17 years of age shall be permitted to

load materials into, but not operate or unload materials from, scrap paper balers and paper box compactors

—

(i) that are safe for 16- and 17-year-old

employees loading the scrap paper balers or

paper box compactors; and

(ii) that cannot be operated while being loaded.

(B) For purposes of subparagraph (A), scrap

paper balers and paper box compactors shall be

considered safe for 16- or 17-year-old employees

to load only if —

(i) (I) the scrap paper balers and

paper box compactors meet the American National Standard Institute’s Standard ANSI Z245.5–1990 for scrap paper

balers and Standard ANSI Z245.2–1992

for paper box compactors; or

(II) the scrap paper balers and

paper box compactors meet an applicable standard that is adopted by the

American National Standards Institute

after the date of enactment of this paragraph and that is certified by the Secretary to be at least as protective of the

safety of minors as the standard described

in subclause (I);

(ii) the scrap paper balers and paper

box compactors include an on-off switch incorporating a key-lock or other system and

the control of the system is maintained in the

94 As added by section 8 of the Fair Labor Standards Amendments of 1977,

effective November 1, 1977.

Sec. 13(c)(1)(B)

95 Added by section I of Public Law 104–174, effective August 6, 1996 (110

Stat. 1553).
23

custody of employees who are 18 years of

age or older;

(iii) the on-off switch of the scrap paper balers and paper box compactors is

maintained in an off position when the scrap

paper balers and paper box compactors are

not in operation; and

(iv) the employer of 16- and 17-year-old

employees provides notice, and posts a notice, on the scrap paper balers and paper box

compactors stating that —

(I) the scrap paper balers and

paper box compactors meet the applicable standard described in clause (i);

(II) 16- and 17-year-old employees may only load the scrap paper balers

and paper box compactors; and

(III) any employee under the age

of 18 may not operate or unload the

scrap paper balers and paper box compactors.

The Secretary shall publish in the Federal Register a

standard that is adopted by the American National

Standards Institute for scrap paper balers or paper box

compactors and certified by the Secretary to be protective of the safety of minors under clause (i)(II).

[Note: Subsection 13(c)(5) shall not be construed as

affecting the exemption for apprentices and student

learners published in Section 570.63 of Title 29, Code of

Federal Regulations.] (Section 3 of Pub. L. 104–174.)

[Also Note: Subparagraph 13(c)5(C), which required employers to submit reports to the Secretary,

expired August 6, 1998.]

(6)96 In the administration and enforcement of

the child labor provisions of this act, employees who

are under 17 years of age may not drive automobiles or trucks on public roadways. Employees who

are 17 years of age may drive automobiles or trucks

on public roadways only if —

(A) such driving is restricted to daylight

hours;

(B) the employee holds a State license

valid for the type of driving involved in the job

performed and has no records of any moving

violation at the time of hire;

(C) the employee has successfully completed a State approved driver education

course;

Sec. 13(c)(5)(B)(ii)

(D) the automobile or truck is equipped

with a seat belt for the driver and any passengers and the employee’s employer has instructed the employee that the seat belts must

be used when driving the automobile or truck;

(E) the automobile or truck does not exceed 6,000 pounds of gross vehicle weight;

(F) such driving does not involve —

(i) the towing of vehicles;

(ii) route deliveries or route sales;

(iii) the transportation for hire of

property, goods, or passengers;

(iv) urgent, time-sensitive deliveries;

(v) more than two trips away from

the primary place of employment in any

single day for the purpose of delivering goods of the employee’s employer

to a customer (other than urgent, timesensitive deliveries);

(vi) more than two trips away from

the primary place of employment in any

single day for the purpose of transporting

passengers (other than employees of the

employer);

(vii) transporting more than three

passengers (including employees of the

employer); or

(viii) driving beyond a 30 mile radius

from the employee’s place of employment;

and

(G) such driving is only occasional and

incidental to the employee’s employment.

For purposes of subparagraph (G), the term

“occasional and incidental” is no more than onethird of an employee’s worktime in any workday

and no more than 20 percent of an employee’s

worktime in any workweek.

(7) 97(A) (i) Subject to subparagraph (B), in

the administration and enforcement of

the child labor provisions of this Act, it

shall not be considered oppressive child

labor for a new entrant into the workforce

to be employed inside or outside places

of business where machinery is used to

process wood products.

96 Added by Public Law 105–334, § 2(b) (112 Stat. 3138), effective 10/31/98.

97 Added by Department of Labor Appropriations Act, 2004, Sec. 108, Fair Labor

Standards Act Woodworking Exemption, Public Law 108-199, 118 Stat. 236.
24

99 Section 1(l) of the Act of August 30, 1957 (71 Stat. 514), as amended by section

21(b) of the Act of July 12, 1960 (74 Stat. 417), and by section 213 of the Fair Labor

Standards Amendments of 1966, and by Section 1225 of the Panama Canal Act of

1979 (93 Stat. 468).

100 Pursuant to Public Law 99–239, 99 Stat. 1770, the Fair Labor Standards Act no

longer applies to Eniwetok Atoll and Kwajalein Atoll, effective October 21, 1986.

Additionally, pursuant to Public Law 94–241, 90 Stat. 263 (48 U.S.C. 1681, note),

effective March 24, 1976, the Fair Labor Standards Act, except for section 6, applies

to the Northern Mariana Islands.

Sec. 13(c)(7)(A)(ii)

(ii) In this paragraph, the term "new

entrant into the workforce" means an

individual who —

(I) is under the age of 18 and

at least the age of 14, and

(II) by statute or judicial order

is exempt from compulsory school

attendance beyond the eighth grade.

(B) The employment of a new entrant

into the workforce under subparagraph (A)

shall be permitted —

(i) if the entrant is supervised by an

adult relative of the entrant or is supervised by an adult member of the same

religious sect or division as the entrant;

(ii) if the entrant does not operate

or assist in the operation of power-driven

woodworking machines;

(iii) if the entrant is protected from

wood particles or other flying debris within

the workplace by a barrier appropriate

to the potential hazard of such wood particles or flying debris or by maintaining

a sufficient distance from machinery in

operation; and

(iv) if the entrant is required to use

personal protective equipment to prevent

exposure to excessive levels of noise and

sawdust.

(d) The provisions of sections 6, 7, and 12 shall not apply with respect to any employee engaged in the delivery

of newspapers to the consumer or to any homeworker engaged in the making of wreaths composed principally

of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest

products used in making such wreaths).

(e) The provisions of section 7 shall not apply with respect to employees for whom the Secretary of Labor is authorized to establish minimum wage rates as provided in

section 6(a)(3), except with respect to employees for whom

such rates are in effect; and with respect to such employees the Secretary may make rules and regulations providing reasonable limitations and allowing reasonable variations, tolerances, and exemptions to and from any or all of

the provisions of section 7 if he shall find, after a public

hearing on the matter, and taking into account the factors

set forth in section 6(a)(3), that economic conditions warrant such action.98

(f) The provisions of sections 6, 7, 11, and 12, shall not

apply with respect to any employee whose services during

the workweek are performed in a workplace within a foreign country or within territory under the jurisdiction of

the United States other than the following: a State of the

United States; the District of Columbia; Puerto Rico; the

Virgin Islands; Outer Continental Shelf lands defined in

the Outer Continental Shelf Lands Act (ch. 345, 67 Stat.

462); American Samoa; Guam; Wake Island; Eniwetok Atoll,

Kwajalein Atoll; and Johnston Island.99, 100

(g) The exemption from section 6 provided by paragraph (6) of subsection (a) of this section shall not

apply with respect to any employee employed by an

establishment (1) which controls, is controlled by, or is

under common control with, another establishment the

activities of which are not related for a common business purpose to, but materially support the activities

of the establishment employing such employee; and (2)

whose annual gross volume of sales made or business

done, when combined with the annual gross volume of

sales made or business done by each establishment

which controls, is controlled by, or is under common control with, the establishment employing such employee,

exceeds $10,000,000 (exclusive of excise taxes at the retail level which are separately stated.)

(h) The provisions of section 7 shall not apply for a

period or periods of not more than fourteen workweeks

in the aggregate in any calendar year to any employee

who —

(1) is employed by such employer —

(A) exclusively to provide services necessary and incidental to the ginning of cotton in an

establishment primarily engaged in the ginning

of cotton;

(B) exclusively to provide services necessary and incidental to the receiving, handling,

and storing of raw cotton and the compressing of

raw cotton when performed at a cotton warehouse

or compress-warehouse facility, other than one

operated in conjunction with a cotton mill, primarily engaged in storing and compressing;

(C) exclusively to provide services necessary and incidental to the receiving, handling,

storing, and processing of cottonseed in an estab98 Section 3 of the American Samoa Labor Standards Amendments of 1956.
Sec. 13(h)(1)(C) 25

101 Added by section 6(b) of the Fair Labor Standards Amendments of 1977,

effective January 1, 1978.

102 Added by section 7(b) of the Fair Labor Standards Amendments of 1977,

effective January 1, 1978.

lishment primarily engaged in the receiving, handling, storing, and processing of cottonseed; or

(D) exclusively to provide services necessary and incidental to the processing of sugar cane

or sugar beets in an establishment primarily engaged in the processing of sugar cane or sugar

beets; and

(2) receives for —

(A) such employment by such employer

which is in excess of ten hours in any workday,

and

(B) such employment by such employer

which is in excess of forty-eight hours in any

workweek;

compensation at a rate not less than one and one-half

times the regular rate at which he is employed.

Any employer who receives an exemption under this

subsection shall not be eligible for any other exemption under this section or section 7.

(i)101 The provisions of section 7 shall not apply for a

period or periods of not more than fourteen workweeks in

the aggregate in any period of fifty-two consecutive weeks

to any employee who —

(1) is engaged in the ginning of cotton for market

in any place of employment located in a county where

cotton is grown in commercial quantities; and

(2) receives for any such employment during such

workweeks —

(A) in excess of ten hours in any workday,

and

(B) in excess of forty-eight hours in any

workweek,

compensation at a rate not less than one and one-half

times the regular rate at which he is employed. No week

included in any fifty-two week period for purposes of

the preceding sentence may be included for such purposes in any other fifty-two week period.

(j)102 The provisions of section 7 shall not apply for a

period or periods of not more than fourteen workweeks in

the aggregate in any period of fifty-two consecutive weeks

to any employee who —

(1) is engaged in the processing of sugar beets,

sugar beet molasses, or sugar cane into sugar (other

than refined sugar) or syrup; and

(2) receives for any such employment during such

workweeks —

(A) in excess of ten hours in any workday,

and

(B) in excess of forty-eight hours in any

workweek,

compensation at a rate not less than one and one-half

times the regular rate at which he is employed. No week

included in any fifty-two week period for purposes of the

preceding sentence may be included for such purposes

in any other fifty-two week period.

Learners, Apprentices, Students, and

Handicapped Workers

SEC. 14.103 (a) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for employment, shall by regulations or by orders provide for the

employment of learners, of apprentices, and of messengers employed primarily in delivering letters and messages, under special certificates issued pursuant to regulations of the Secretary, at such wages lower than the

minimum wage applicable under section 6 and subject to

such limitations as to time, number, proportion, and length

of service as the Secretary shall prescribe.

(b) (1) (A) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for

employment, shall by special certificate issued

under a regulation or order provide, in accordance

with subparagraph (B), for the employment, at

a wage rate not less than 85 per centum of the

otherwise applicable wage rate in effect under section 6 or not less than $1.60 an hour, whichever is

higher, of full-time students (regardless of age but

in compliance with applicable child labor laws) in

retail or service establishments.

(B) Except as provided in paragraph (4)(B),

during any month in which full-time students are

to be employed in any retail or service establishment under certificates issued under this subsection the proportion of student hours of employment to the total hours of employment of all

employees in such establishment may not exceed

—

(i) in the case of a retail or service establishment whose employees (other than

employees engaged in commerce or in the production of goods for commerce) were covered by

this Act before the effective date of the Fair

Labor Standards Amendments of 1974 —

103 As amended by section 24 of the Fair Labor Standards Amendments of 1974.
26

104 As amended by section 12 of the Fair Labor Standards Amendments of 1977,

effective November 1, 1977. The 1977 amendments substituted “six” for “four.”

Sec. 14(b)(1)(B)(i)(I)

(I) the proportion of student

hours of employment to the total hours

of employment of all employees in such

establishment for the corresponding

month of the immediately preceding

twelve-month period,

(II) the maximum proportion for

any corresponding month of student

hours of employment to the total hours

of employment of all employees in such

establishment applicable to the issuance of certificates under this section at

any time before the effective date of the

Fair Labor Standards Amendments of

1974 for the employment of students by

such employer, or

(III) a proportion equal to onetenth of the total hours of employment

of all employees in such establishment,

whichever is greater;

(ii) in the case of retail or service establishment whose employees (other than

employees engaged in commerce or in the production of goods for commerce) are covered

for the first time on or after the effective date

of the Fair Labor Standards Amendments of

1974 —

(I) the proportion of hours of employment of students in such establishment to the total hours of employment of

all employees in such establishment for

the corresponding month of the twelvemonth period immediately prior to the

effective date of such Amendments,

(II) the proportion of student

hours of employment to the total hours

of employment of all employees in such

establishment for the corresponding

month of the immediately preceding

twelve-month period, or

(III) a proportion equal to onetenth of the total hours of employment

of all employees in such establishment,

whichever is greater; or

(iii) in the case of a retail or service establishment for which records of student

hours worked are not available, the proportion of student hours of employment to the

total hours of employment of all employees

based on the practice during the immediately

preceding twelve-month period in (I) similar establishments of the same employer in

the same general metropolitan area in which

such establishment is located, (II) similar

establishments of the same or nearby communities if such establishment is not in a metropolitan area, or (III) other establishments

of the same general character operating in

the community or the nearest comparable

community.

For purpose of clauses (i), (ii), and (iii) of this

subparagraph, the term “student hours of employment” means hours during which students are

employed in a retail or service establishment under certificates issued under this subsection.

(2) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for employment, shall by special certificate issued under a

regulation or order provide for the employment, at a

wage rate not less than 85 per centum of the wage rate

in effect under section 6(a)(5) or not less than $1.30 an

hour, whichever is the higher, of full-time students

(regardless of age but in compliance with applicable

child labor laws) in any occupation in agriculture.

(3) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for employment, shall by special certificate issued under a

regulation or order provide for the employment by an

institution of higher education, at a wage rate not less

than 85 per centum of the otherwise applicable wage

rate in effect under section 6 or not less than $1.60 an

hour, whichever is the higher, of full-time students (regardless of age but in compliance with applicable child

labor laws) who are enrolled in such institution. The

Secretary shall by regulation prescribe standards and

requirements to insure that this paragraph will not

create a substantial probability of reducing the fulltime employment opportunities of persons other than

those to whom the minimum wage rate authorized by

this paragraph is applicable.

(4) (A) A special certificate issued under paragraph (1), (2), or (3) shall provide that the student or students for whom it is issued shall,

except during vacation periods, be employed on a

part-time basis and not in excess of twenty hours

in any workweek.

(B)104 If the issuance of a special certificate

under paragraph (1) or (2) for an employer will
27

105 Added by section 13 of the Fair Labor Standards Amendments of 1977, effective

November 1, 1977.

106 As amended by the Act of October 16, 1986 (100 Stat. 1229).

Sec. 14(b)(4)(B)

cause the number of students employed by such

employer under special certificates issued under

this subsection to exceed six, the Secretary may

not issue such a special certificate for the employment of a student by such employer unless the

Secretary finds employment of such student will

not create a substantial probability of reducing

the full-time employment opportunities of persons

other than those employed under special certificates issued under this subsection. If the issuance of a special certificate under paragraph (1)

or (2) for an employer will not cause the number

of students employed by such employer under special certificates issued under this subsection to

exceed six —

(i) the Secretary may issue a special

certificate under paragraph (1) or (2) for the

employment of a student by such employer if

such employer certifies to the Secretary that

the employment of such student will not reduce the full-time employment opportunities

of persons other than those employed under

special certificates issued under this subsection, and

(ii) in the case of an employer which

is a retail or service establishment, subparagraph (B) of paragraph (1) shall not

apply with respect to the issuance of special

certificates for such employer under such

paragraph.

The requirement of this subparagraph shall not

apply in the case of the issuance of special certificates under paragraph (3) for the employment

of full-time students by institutions of higher education; except that if the Secretary determines

that an institution of higher education is employing students under certificates issued under paragraph (3) but in violation of the requirements of

that paragraph or of regulations issued thereunder, the requirements of this subparagraph shall

apply with respect to the issuance of special certificates under paragraph (3) for the employment

of students by such institution.

(C) No special certificate may be issued under this subsection unless the employer for whom

the certificate is to be issued provides evidence

satisfactory to the Secretary of the student status of the employees to be employed under such

special certificate.

(D)105 To minimize paperwork for, and to encourage, small businesses to employ students under special certificates issued under paragraphs (1)

and (2), the Secretary shall, by regulation or order,

prescribe a simplified application form to be used

by employers in applying for such a certificate for

the employment of not more than six full-time students. Such an application shall require only —

(i) a listing of the name, address, and

business of the applicant employer,

(ii) a listing of the date the applicant

began business, and

(iii) the certification that the employment

of such full-time students will not reduce the

full-time employment opportunities of persons

other than persons employed under special

certificates.

(c)106 (1) The Secretary, to the extent necessary to prevent curtailment of opportunities for employment, shall

by regulation or order provide for the employment,

under special certificates, of individuals (including individuals employed in agriculture) whose earning or productive capacity is impaired by age, physical or mental

deficiency, or injury, at wages which are —

(A) lower than the minimum wage applicable

under section 6,

(B) commensurate with those paid to nonhandicapped workers, employed in the vicinity in

which the individuals under the certificates are

employed, for essentially the same type, quality, and

quantity of work, and

(C) related to the individual’s productivity.

(2) The Secretary shall not issue a certificate under paragraph (1) unless the employer provides written

assurances to the Secretary that —

(A) in the case of individuals paid on an hourly

rate basis, wages paid in accordance with paragraph (1) will be reviewed by the employer at periodic intervals at least once every six months, and

(B) wages paid in accordance with paragraph

(1) will be adjusted by the employer at periodic intervals, at least once each year, to reflect changes

in the prevailing wage paid to experienced nonhandicapped individuals employed in the locality

for essentially the same type of work.
Sec. 14(c)(3) 28

(3) Notwithstanding paragraph (1), no employer

shall be permitted to reduce the hourly wage rate prescribed by certificate under this subsection in effect on

June 1, 1986, of any handicapped individual for a period of two years from such date without prior authorization of the Secretary.

(4) Nothing in this subsection shall be construed

to prohibit an employer from maintaining or establishing

work activities centers to provide therapeutic activities

for handicapped clients.

(5) (A) Notwithstanding any other provision of

this subsection, any employee receiving a special

minimum wage at a rate specified pursuant to this

subsection or the parent or guardian of such an

employee may petition the Secretary to obtain a

review of such special minimum wage rate. An employee or the employee’s parent or guardian may

file such a petition for and in behalf of the employee

or in behalf of the employee and other employees

similarly situated. No employee may be a party to

any such action unless the employee or the employee’s parent or guardian gives consent in writing to become such a party and such consent is

filed with the Secretary.

(B) Upon receipt of a petition filed in accordance with subparagraph (A), the Secretary within

ten days shall assign the petition to an administrative law judge appointed pursuant to section 3105

of title 5, United States Code. The administrative

law judge shall conduct a hearing on the record in

accordance with section 554 of title 5, United States

Code, with respect to such petition within thirty days

after assignment.

(C) In any such proceeding, the employer

shall have the burden of demonstrating that the

special minimum wage rate is justified as necessary in order to prevent curtailment of opportunities for employment.

(D) In determining whether any special minimum wage rate is justified pursuant to subparagraph (C), the administrative law judge shall consider —

(i) the productivity of the employee or

employees identified in the petition and the

conditions under which such productivity was

measured; and

(ii) the productivity of other employees

performing work of essentially the same type

and quality for other employers in the same

vicinity.

(E) The administrative law judge shall issue

a decision within thirty days after the hearing provided for in subparagraph (B). Such action shall

be deemed to be a final agency action unless within

thirty days the Secretary grants a request to review the decision of the administrative law judge.

Either the petitioner or the employer may request

review by the Secretary within fifteen days of the

date of issuance of the decision by the administrative law judge.

(F) The Secretary, within thirty days after receiving a request for review, shall review the record

and either adopt the decision of the administrative

law judge or issue exceptions. The decision of the

administrative law judge, together with any exceptions, shall be deemed to be a final agency action.

(G) A final agency action shall be subject to

judicial review pursuant to chapter 7 of title 5, United

States Code. An action seeking such review shall

be brought within thirty days of a final agency action described in subparagraph (F).

(d) The Secretary may by regulation or order provide

that sections 6 and 7 shall not apply with respect to the

employment by any elementary or secondary school of

its students if such employment constitutes, as determined under regulations prescribed by the Secretary,

an integral part of the regular education program provided by such school and such employment is in accordance with applicable child labor laws.

Prohibited Acts

SEC. 15. (a) After the expiration of one hundred and

twenty days from June 25, 1938, it shall be unlawful

for any person —

(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with

knowledge that shipment or delivery or sale thereof in

commerce is intended, any goods in the production of

which any employee was employed in violation of section

6 or section 7, or in violation of any regulation or order of

the Secretary of Labor issued under section 14; except

that no provision of this Act shall impose any liability upon

any common carrier for the transportation in commerce

in the regular course of its business of any goods not produced by such common carrier, and no provision of this

Act shall excuse any common carrier from its obligation

to accept any goods for transportation; and except that
29

107 As amended by section 13(a) of the Fair Labor Standards Amendments of 1949. 108 Section 8 of the Fair Labor Standards Amendments of 1985 contains special

discrimination provisions applicable to public agencies.

109 As amended by section 13(b) of the Fair Labor Standards Amendments of 1949. 110 The Portal-to-Portal Act of 1947 relieves employers from certain liabilities and

punishments under this Act in circumstances specified in that Act. See also section

2(c) of the Fair Labor Standards Amendments of 1985, which relieves certain public

agencies of certain liabilities under this Act prior to April 15, 1986.

111 Amendment provided by section 5(a) of the Portal-to-Portal Act of 1947. 112 The Fair Labor Standards Amendments of 1977 amended subsection 16(b),

effective January 1, 1978, to authorize a private right of action for violations of subsection 15(a)(3) of the Act. Prior to this amendment, only the Secretary of Labor was

authorized to bring an action for violations of subsection 15(a)(3).

113 The provision for liquidated damages was added by the Fair Labor Standards

Amendments of 1974. These Amendments also deleted the prior requirements that

section 16(c) suits be brought only on the written request of the employee and if the

case did not involve any issue of law which had not been finally settled by the courts.

Sec. 15(a)(1)

any such transportation, offer, shipment, delivery, or sale

of such goods by a purchaser who acquired them in good

faith in reliance on written assurance from the producer

that the goods were produced in compliance with the requirements of the Act, and who acquired such goods for

value without notice of any such violation, shall not be

deemed unlawful;107

(2) to violate any of the provisions of section 6 or

section 7, or any of the provisions of any regulation or

order of the Secretary issued under section 14;

(3) to discharge or in any other manner discriminate against any employee because such employee has

filed any compliant or instituted or caused to be instituted any proceeding under or related to this Act, or

has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry

committee;108

(4) to violate any of the provisions of section 12;

(5) to violate any of the provisions of section 11(c)

or any regulation or order made or continued in effect

under the provisions of section 11(d), or to make any statement, report, or record filed or kept pursuant to the provisions of such section or of any regulation or order thereunder, knowing such statement, report, or record to be

false in a material respect.109

(b) For the purposes of subsection (a)(1) proof that any

employee was employed in any place of employment where

goods shipped or sold in commerce were produced, within

ninety days prior to the removal of the goods from such

place of employment, shall be prima facie evidence that such

employee was engaged in the production of such goods.

Penalties110

SEC. 16. (a) Any person who willfully violates any of the

provisions of section 15 shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment

for not more than six months, or both. No person shall be

imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.

(b) Any employer who violates the provisions of section 6

or section 7 of this Act shall be liable to the employee or

employees affected in the amount of their unpaid minimum

wages, or their unpaid overtime compensation, as the case

may be, and in an additional equal amount as liquidated

damages. Any employer who violates the provisions of

section 15(a)(3) of this Act shall be liable for such legal or

equitable relief as may be appropriate to effectuate the

purposes of section 15(a)(3), including without limitation

employment, reinstatement, promotion, and the payment

of wages lost and an additional equal amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency)

in any Federal or State court of competent jurisdiction by

any one or more employees for and in behalf of himself or

themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless

he gives his consent in writing to become such a party and

such consent is filed in the court in which such action is

brought.111 The court in such action shall, in addition to

any judgment awarded to the plaintiff or plaintiffs, allow a

reasonable attorney's fee to be paid by the defendant, and

costs of the action. The right provided by this subsection

to bring an action by or on behalf of any employee, and

the right of any employee to become a party plaintiff to

any such action, shall terminate upon the filing of a

complaint by the Secretary of Labor in an action under

section 17 in which (1) restraint is sought of any further delay in the payment of unpaid minimum wages,

or the amount of unpaid overtime compensation as the

case may be, owing to such employee under section 6 or

section 7 of this Act by an employer liable therefor under the provisions of this subsection or (2) legal or equitable relief is sought as a result of alleged violations of

section 15(a)(3).112

(c) The Secretary is authorized to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee or employees

under section 6 or 7 of this Act, and the agreement of any

employee to accept such payment shall upon payment in

full constitute a waiver by such employee of any right he

may have under subsection (b) of this section to such unpaid minimum wages or unpaid overtime compensation and

an additional equal amount as liquidated damages. The

Secretary may bring an action in any court of competent

jurisdiction to recover the amount of the unpaid minimum

wages or overtime compensation and an equal amount

as liquidated damages.113 The right provided by subsection (b) to bring an action by or on behalf of any employee to recover the liability specified in the first sentence
Sec. 16(c) 30

119 As added by section 9 of the Fair Labor Standards Amendments of 1989, and

amended by section 3103 of the Omnibus Budget Reconciliation Act of 1990.

120 As added by section 9 of the Fair Labor Standards Amendments of 1989.

121 As amended by section 3103 of the Omnibus Budget Reconciliation Act of 1990.

of such subsection and of any employee to become a party

plaintiff to any such action shall terminate upon the

filing of a complaint by the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation

under sections 6 and 7 or liquidated or other damages

provided by this subsection owing to such employee by

an employer liable under the provisions of subsection (b),

unless such action is dismissed without prejudice on

motion of the Secretary. Any sums thus recovered by

the Secretary on behalf of an employee pursuant to this

subsection shall be held in a special deposit account and

shall be paid, on order of the Secretary, directly to the employee or employees affected. Any such sums not paid to

an employee because of inability to do so within a period of

three years shall be covered into the Treasury of the United

States as miscellaneous receipts. In determining when an

action is commenced by the Secretary under this subsection for the purposes of the statutes114 of limitations provided in section 6(a) of the Portal-to-Portal Act of 1947, it

shall be considered to be commenced in the case of any

individual claimant on the date when the complaint is filed

if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent

date on which his name is added as a party plaintiff in

such action.115

(d) In any action or proceeding commenced prior to, on,

or after August 8, 1956, no employer shall be subject to

any liability or punishment under this Act or the Portalto-Portal Act of 1947 on account of his failure to comply

with any provision or provisions of such Acts (1) with respect

to work heretofore or hereafter performed in a workplace to

which the exemption in section 13(f) is applicable, (2) with

respect to work performed in Guam, the Canal Zone or

Wake Island before the effective date of this amendment of

subsection (d), or (3) with respect to work performed in a

possession named in section 6(a)(3) at any time prior to

the establishment by the Secretary, as provided therein,

of a minimum wage rate applicable to such work.116

(e) Any person who violates the provisions of section

12 or section 13(c)(5),117 relating to child labor, or any

regulation issued under section 12 or section 13(c)(5),118

shall be subject to a civil penalty of not to exceed $10,000

for each employee who was the subject of such a violation. Any person who repeatedly or willfully violates

section 6 or 7 shall be subject to a civil penalty of not to

exceed $1,000 for each such violation.119 In determining

the amount of any penalty under this subsection, the

appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. The amount of any penalty

under this subsection, when finally determined, may

be —

(1) deducted from any sums owing by the United

States to the person charged;

(2) recovered in a civil action brought by the

Secretary in any court of competent jurisdiction, in

which litigation the Secretary shall be represented by

the Solicitor of Labor; or

(3) ordered by the court, in an action brought

for a violation of section 15(a)(4) or a repeated or

willful violation of section 15(a)(2),120 to be paid to

the Secretary.

Any administrative determination by the Secretary of

the amount of any penalty under this subsection shall

be final, unless within fifteen days after receipt of

notice thereof by certified mail the person charged with

the violation takes exception to the determination that

the violations for which the penalty is imposed occurred,

in which event final determination of the penalty shall

be made in an administrative proceeding after opportunity for hearing in accordance with section 554 of title 5,

United States Code, and regulations to be promulgated

by the Secretary. Except for civil penalties collected for

violations of section 12, sums collected as penalties pursuant to this section shall be applied toward reimbursement of the costs of determining the violations and

assessing and collecting such penalties, in accordance

with the provisions of section 9a. Civil penalties collected

for violations of section 12 shall be deposited in the general

fund of the Treasury.121

114 Amended by section 601 of the Fair Labor Standards Amendments of 1966. 115 Section 14 of the Fair Labor Standards Amendments of 1949, as amended by Reorganization Plan No. 6 of 1950 and the Fair Labor Standards Amendments

of 1966.

116 Section 4 of the American Samoa Labor Standards Amendments of 1956,

as amended by section 1(2) of the Act of August 30, 1957 (71 Stat. 514), effective November 27, 1957.

117 As amended by section 2 of Public Law 104–174 (110 Stat. 1554). 118 Ibid.
31

Injunction Proceedings

SEC. 17. The district courts, together with the United

States District Court for the District of the Canal Zone,

the District Court of the Virgin Islands, and the District Court of Guam shall have jurisdiction, for cause

shown, to restrain violations of section 15, including

in the case of violations of section 15(a)(2) the restraint

of any withholding of payment of minimum wages or

overtime compensation found by the court to be due to

employees under this Act (except sums which employees are barred from recovering, at the time of the

commencement of the action to restrain the violations,

by virtue of the provisions of section 6 of the Portal-toPortal Act of 1947).122

Relation to Other Laws

SEC. 18. (a) No provision of this Act or of any order

thereunder shall excuse noncompliance with any Federal

or State law or municipal ordinance establishing a minium

wage higher than the minium wage established under this

Act or a maximum workweek lower than the maximum

workweek established under this Act, and no provision of

this Act relating to the employment of child labor shall

justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the

standard established under this Act. No provision of this

Act shall justify any employer in reducing a wage paid by

him which is in excess of the applicable minimum wage under this Act, or justify any employer in increasing hours of

employment maintained by him which are shorter than the

maximum hours applicable under this Act.

(b) Notwithstanding any other provision of this Act

(other than section 13(f)) or any other law —

(1) any Federal employee in the Canal Zone engaged in employment of the kind described in section

5102(c)(7) of title 5, United States Code, or 123

(2) any employee employed in a nonappropriated

fund instrumentality under the jurisdiction of the Armed

Forces,124

shall have his basic compensation fixed or adjusted at a

wage rate which is not less than the appropriate wage rate

provided for in section 6(a)(1) of this Act (except that the

wage rate provided for in section 6(b) shall apply to any

employee who performed services during the workweek in

a work place within the Canal Zone), and shall have his

overtime compensation set at an hourly rate not less than

the overtime rate provided for in section 7(a)(1) of this Act.

Separability of Provisions

SEC. 19. If any provision of this Act or the application of

such provision to any persons or circumstances is held invalid, the remainder of the Act and the application of such

provision to other persons or circumstances shall not be

affected thereby.

Approved, June 25, 1938.125

122 As amended by section 12 of the Fair Labor Standards Amendments of 1961.

123 Paragraph (1), as amended by Public Law 90–83, 81 Stat. 222, omits reference to

other employees covered under paragraph (1) of this subsection as enacted in the

Fair Labor Standards Amendments of 1966, section 306, whose compensation requirements under such Amendments are now incorporated in 5 U.S.C. 5341 and

5 U.S.C. 5544.

124 Paragraph (2) was formerly paragraph (3) of subsection (b) as enacted in the

Fair Labor Standards Amendments of 1966, section 306. It was renumbered in the

amendment by Public Law 90–83, 81 Stat. 222, which omitted the former paragraph

(2) referring to employees described in 10 U.S.C. 7474 because of repeal of the latter

provision by Public Law 89–554, 80 Stat. 663.

125 The Fair Labor Standards Amendments of 1949 were approved October 26, 1949;

the Fair Labor Standards Amendments of 1955 were approved August 12, 1955;

the American Samoa Labor Standards Amendments were approved August 8, 1956;

the Fair Labor Standards Amendments of 1961 were approved May 5, 1961; the

Fair Labor Standards Amendments of 1966 were approved September 23, 1966;

the Fair Labor Standards Amendments of 1974 were approved April 8, 1974; the

Fair Labor Standards Amendments of 1977 were approved November 1, 1977;

the Fair Labor Standards Amendments of 1985 were approved November 13, 1985;

the Fair Standards Amendments of 1989 were approved November 17, 1989; and the

Small Business Job Protection Act of 1996, which included the Employee Commuting Flexibility Act of 1996, the Minimum Wage Increase Act of 1996, and Fair

Labor Standards Act Amendments, was approved on August 20, 1996.

Sec. 17
32

ADDITIONAL PROVISIONS OF THE WORKER ECONOMIC OPPORTUNITY ACT

(114 Stat. 308)

[PUBLIC LAW 106–202]

[104TH CONGRESS] [SECOND SESSION]

AN ACT TO AMEND THE FAIR LABOR

STANDARDS ACT OF 1938 TO

CLARIFY THE TREATMENT OF

STOCK OPTIONS UNDER THE ACT.

SEC. 1. SHORT TITLE.

This act may be cited as the “Worker Economic

Opportunity Act.”

* * * * * *

EFFECTIVE DATE

(c) The amendments made by this section shall

take effect on the date that is 90 days after the date

of enactment of this Act.

LIABILITY OF EMPLOYERS

No employer shall be liable under the Fair Labor

Standards Act of 1938 for any failure to include in an

employee’s regular rate (as defined for purposes of

such Act) any income or value derived from employerprovided grants or rights obtained pursuant to any

stock option, stock appreciation right, or employee

stock purchase program if —

(1) the grants or rights were obtained before

the effective date described in subsection (c);

(2) the grants or rights were obtained within

the 12-month period beginning on the effective

date de-scribed in subsection (c), so long as such

program was in existence on the date of enactment

of this Act and will require shareholder approval

to modify such program to comply with section

7(3)(8) of the Fair Labor Standards Act of 1938 (as

added by the amendments made by subsection (a));

or

(3) such program is provided under a collective bargaining agreement on the effective date

described in subsection (c).

Approved May 18, 2000.
33

[PUBLIC LAW 106–151, SECTION 2]

CONSTRUCTION

Section 2 provided that: “The amendment made

by section 1 [adding subsec. (y) of this section]

shall not be construed to reduce or substitute for

compensation standards: (1) contained in any

existing or future agreement or memorandum of

understanding reached through collective bargaining by a bona fide representative of employees

in accordance with the laws of a state or political

subdivision of a state; and (2) which result in compensation greater than the compensation available to employees under the overtime exemption

under section 7 (K) of the Fair Labor Standards Act

of 1938 [29 U.S.C.A. § 207(K)].

* * * * * *

ADDITIONAL PROVISIONS OF THE ACT OF DECEMBER 9, 1999

(113 Stat. 1731)
34

[PUBLIC LAW 104–188]

[104TH CONGRESS] [SECOND SESSION]

AN ACT

To provide tax relief for small businesses, to protect jobs,

to create opportunities, to increase the take home pay of

workers, to amend the Portal-to-Portal Act of 1947 relating

to the payment of wages to employees who use employer

owned vehicles, and to amend the Fair Labor Standards

Act of 1938 to increase the minimum wage rate and to prevent job loss by providing flexibility to employers in complying with minimum wage and overtime requirements

under that Act.

ADDITIONAL PROVISIONS OF THE SMALL BUSINESS JOB PROTECTION ACT OF 1996

(110 Stat. 1755)

SEC. 2101. SHORT TITLE.

This section and sections 2102 and 2103 may be cited as

the “Employee Commuting Flexibility Act of 1996.”

* * * * * *

SEC. 2103. EFFECTIVE DATE.

The amendment made by section 2102 shall take effect

on the date of enactment of this Act and shall apply in

determining the application of section 4 of the Portal-toPortal Act of 1947 to an employee in any civil action brought

before such date of enactment but pending on such date.

LEGISLATIVE HISTORY — H.R. 3448:

HOUSE REPORTS: Nos. 104–586 (Comm. on Ways and

Means) and 104–737 (Comm. of Conference).

SENATE REPORTS: No. 104–281 (Comm. on Finance).

CONGRESSIONAL RECORD, Vol. 142 (1996):

May 22, considered and passed House.

July 8, 9, considered and passed Senate, amended.

Aug. 2, House and Senate agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL

DOCUMENTS, Vol. 32 (1996):

Aug. 20, Presidential remarks and statement.
35

[PUBLIC LAW 101–583]

[101ST CONGRESS] [FIRST SESSION]

AN ACT

To eliminate “substantial documentary evidence” requirement for minimum wage determination for American Samoa, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States in Congress assembled.

[Section 1 of the Act of November 15, 1990 amends the

Fair Labor Standards Act of 1938, and is incorporated in

its proper place in the Act.]

ADDITIONAL PROVISIONS OF THE ACT OF NOVEMBER 15, 1990

(104 Stat. 2871)

SEC. 2. REGULATIONS CONCERNING

CERTAIN EMPLOYEES

Not later than 90 days after the date of enactment of this

Act, the Secretary of Labor shall promulgate regulations

that permit computer systems analysts, computer programmers, software engineers, and other similarly skilled professional workers as defined in such regulations to qualify

as exempt executive, administrative, or professional employees under section 13(a)(1) of the Fair Labor Standards

Act of 1938 (29 U.S.C. 213(a)(1)). Such regulations shall

provide that if such employees are paid on an hourly basis

they shall be exempt only if their hourly rate of pay is at

least 6 1/2 times greater than the applicable minimum wage

rate under section 6 of such Act (29 U.S.C. 206).

Approved November 15, 1990.

LEGISLATIVE HISTORY — S. 2930:

CONGRESSIONAL RECORD, Vol. 136 (1990):

Aug. 4, considered and passed Senate.

Oct. 18, considered and passed House, amended.

Oct. 27, Senate concurred in House amendments.
36

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1989

(103 Stat. 938)

[PUBLIC LAW 101–157]

[101ST CONGRESS] [FIRST SESSION]

AN ACT

To amend the Fair Labor Standards Act of 1938 to increase

the minimum wage, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States in Congress assembled, That this Act

may be cited as the “Fair Labor Standards Amendments

of 1989.”

[Sections 2; 3(a), (c), and (d); 4; 5; 7; and 9 of the

Fair Labor Standards Amendments of 1989 amend the

Fair Labor Standards Act of 1938, and are incorporated in their proper place in the Act.]

PRESERVATION OF COVERAGE

SEC. 3. * * *

(b) PRESERVATION OF COVERAGE. —

(1) IN GENERAL. — Any enterprise that on

March 31, 1990, was subject to section 6(a)(1) of the

Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))

and that because of the amendment made by subsection (a) is not subject to such section shall —

(A) pay its employees not less than the

minimum wage in effect under such section on

March 31, 1990;

(B) pay its employees in accordance with

section 7 of such Act (29 U.S.C. 207); and

(C) remain subject to section 12 of such

Act (29 U.S.C. 212).

(2) VIOLATIONS. — A violation of paragraph

(1) shall be considered a violation of section 6, 7, or

12 of the Fair Labor Standards Act of 1938, as the

case may be.

* * * * * *

(e) EFFECTIVE DATE. — The amendments made by

this section shall become effective on April 1, 1990.

TRAINING WAGE

SEC. 6. TRAINING WAGE.

(a) IN GENERAL. —

(1) AUTHORITY. — Any employer may, in lieu

of the minimum wage prescribed by section 6 of the

Fair Labor Standards Act of 1938 (29 U.S.C. 206),

pay an eligible employee the wage prescribed by

paragraph (2) —

(A) while such employee is employed for

the period authorized by subsection (g)(1)(B)(i),

or

(B) while such employee is engaged in

on-the-job training for the period authorized by

subsection (g)(1)(B)(ii).

(2) WAGE RATE. — The wage referred to in

paragraph (1) shall be a wage —

(A) of not less than $3.35 an hour during

the year beginning April 1, 1990; and

(B) beginning April 1, 1991, of not less than

$3.35 an hour or 85 percent of the wage prescribed by section 6 of such Act, whichever is

greater.

(b) WAGE PERIOD. — An employer may pay an eligible employee the wage authorized by subsection (a)

for a period that —

(1) begins on or after April 1, 1990;

(2) does not exceed the maximum period during which an employee may be paid such wage as

determined under subsection (g)(1)(B); and

(3) ends before April 1, 1993.

(c) WAGE CONDITIONS. — No eligible employee

may be paid the wage authorized by subsection (a) by

an employer if —

(1) any other individual has been laid off by

such employer from the position to be filled by such

eligible employee or from any substantially equivalent position; or

(2) such employer has terminated the employment of any regular employee or otherwise reduced

the number of employees with the intention of filling the vacancy so created by hiring an employee

to be paid such wage.
37

(d) LIMITATIONS. —

(1) EMPLOYEE HOURS. — During any month

in which employees are to be employed in an establishment under this section, the proportion of employee hours of employment to the total hours of

employment of all employees in such establishment

may not exceed a proportion equal to one-fourth of

the total hours of employment of all employees in

such establishment.

(2) DISPLACEMENT. —

(A) PROHIBITION. — No employer may

take any action to displace employees (including partial displacements such as reduction in

hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in subsection (a).

(B) DISQUALIFICATION. — If the Secretary

determines that an employer has taken an action in violation of subparagraph (A), the Secretary shall issue an order disqualifying such

employer from employing any individual at such

wage.

(e) NOTICE. — Each employer shall provide to any

eligible employee who is to be paid the wage authorized by subsection (a) a written notice before the

employee begins employment stating the requirements of this section and the remedies provided by

subsection (f) for violations of this section. The Secretary shall provide to employers the text of the notice to be provided under this subsection.

(f) ENFORCEMENT. — Any employer who violates

this section shall be considered to have violated

section 15(a)(3) of the Fair Labor Standards Act of 1938

(29 U.S.C. 215(a)(3)). Sections 16 and 17 of such Act

(29 U.S.C. 216 and 217) shall apply with respect to the

violation.

(g) DEFINITIONS. — For purposes of this section:

(1) ELIGIBLE EMPLOYEE. —

(A) IN GENERAL. — The term “eligible employee” means with respect to an employer an

individual who —

(i) is not a migrant agricultural worker or a seasonal agricultural worker (as

defined in paragraphs (8) and (10) of section 3 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C.

1802 (8) and (10)) without regard to subparagraph (B) of such paragraphs and is

not a nonimmigrant described in section

101(a)(15)(H)(ii)(a) of the immigration and

Nationality Act (8 U.S.C. 1101(a)(15)(H)

(ii)(a));

(ii) has not attained the age of 20

years; and

(iii) is eligible to be paid the wage authorized by subsection (a) as determined

under subparagraph (B).

(B) DURATION. —

(i) An employee shall initially be eligible to be paid the wage authorized by

subsection (a) until the employee has been

employed a cumulative total of 90 days at

such wage.

(ii) An employee who has been employed by an employer at the wage authorized by subsection (a) for the period authorized by clause (i) may be employed by

any other employer for an additional 90

days if the employer meets the requirements of subsection (h).

(iii) The total period, as authorized by

clauses (i) and (ii), that an employee may

be paid the wage authorized by subsection

(a) may not exceed 180 days.

(iv) For purposes of this subparagraph, the term “employer” means with respect to an employee an employer who is

required to withhold payroll taxes for such

employee.

(C) PROOF. —

(i) IN GENERAL. — An individual

is responsible for providing the requisite proof of previous period or periods

of employment with other employers. An

employer's good faith reliance on the proof

presented to the employer by an individual shall constitute a complete defense

to a charge that the employer has violated

subsection (b)(2) with respect to such

individual.

(ii) REGULATIONS. — The Secretary

of Labor shall issue regulations defining the

requisite proof required of an individual.

Such regulations shall establish minimal

requirements for requisite proof and may

prescribe that an accurate list of the individual’s employers and a statement of the
38

dates and duration of employment with

each employer constitute requisite proof.

(2) ON-THE-JOB TRAINING. — The term “onthe-job training” means training that is offered to

an individual while employed in productive work that

provides training, technical and other related skills,

and personal skills that are essential to the full and

adequate performance of such employment.

(h) EMPLOYER REQUIREMENTS. — An employer

who wants to employ employees at the wage authorized by subsection (a) for the period authorized by

subsection (g)(1)(B)(ii) shall —

(1) notify the Secretary annually of the positions at which such employees are to be employed

at such wage,

(2) provide on-the-job training to such employees which meets general criteria of the Secretary

issued by regulation after consultation with the

Committee on Labor and Human Resources of the

Senate and the Committee on Education and Labor

of the House of Representatives and other interested

persons,

(3) keep on file a copy of the training program

which the employer will provide such employees,

(4) provide a copy of the training program to

the employees,

(5) post in a conspicuous place in places of

employment a notice of the types of jobs for which

the employer is providing on-the-job training, and

(6) send to the Secretary on an annual basis a

copy of such notice.

The Secretary shall make available to the public upon

request notices provided to the Secretary by employers in accordance with paragraph (6).

(i) REPORT. — The Secretary of Labor shall report to Congress not later than March 1, 1993, on the

effectiveness of the wage authorized by subsection (a).

The report shall include —

(1) an analysis of the impact of such wage

on employment opportunities for inexperienced

workers;

(2) any reduction in employment opportunities

for experienced workers resulting from the employment of employees under such wage;

(3) the nature and duration of the training provided under such wage; and

(4) the degree to which employees used the

authority to pay such wage.

APPLICATIONS OF FLSA TO

CONGRESSIONAL AND ARCHITECT

OF THE CAPITOL EMPLOYEES

SEC. 8. APPLICATION OF RIGHTS AND PROTECTIONS OF FAIR LABOR STANDARDS ACT OF 1938

TO CONGRESSIONAL AND ARCHITECT OF THE

CAPITOL EMPLOYEES.

(a) HOUSE EMPLOYEES. —

(1) IN GENERAL. — Not later than 180 days

after the date the minimum wage rate prescribed by

section 6(a)(1) of the Fair Labor Standards Act of 1938

(29 U.S.C. 206(a)(1)) is increased pursuant to the

amendment made by section 2, the rights and protections under the Fair Labor Standards Act of 1938

(29 U.S.C. 201 et seq.) shall apply with respect to any

employee in an employment position in the House

of Representatives and to any employing authority

of the House of Representatives.

(2) ADMINISTRATION. — In the administration

of this subsection, the remedies and procedures

under the Fair Employment Practices Resolution

shall be applied. As used in this paragraph,

the term "Fair Employment Practices Resolution"

means House Resolution 558, One Hundredth Congress, agreed to October 4, 1988, as continued in

effect by House Resolution 15, One Hundred First

Congress, agreed to January 3, 1989.

(b) ARCHITECT OF THE CAPITOL EMPLOYEES. —

Not later than 180 days after the date the minimum

wage rate prescribed by section 6(a)(1) of the Fair

Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) is

increased pursuant to the amendment made by section 2, the rights and protections under the Fair

Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) shall

apply with respect to individuals employed under

the Office of the Architect of the Capitol.

Approved November 17, 1989.
39

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1985

(99 Stat. 787)

[PUBLIC LAW 99–150]

[99TH CONGRESS] [FIRST SESSION]

AN ACT

To amend the Fair Labor Standards Act of 1938 to provide

rules for overtime compensatory time off for certain public

agency employees, to clarify the application of that Act to

volunteers, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States in Congress assembled, That this Act

may be cited as the “Fair Labor Standards Amendments

of 1985.”

[Sections 2(a), 3, 4(a) and 5 of the Fair Labor Standards Amendments of 1985 amend the Fair Labor

Standards Act of 1938, and are incorporated in their

proper place in the Act.]

COMPENSATORY TIME

SEC. 2. * * *

(b) EXISTING COLLECTIVE BARGAINING AGREEMENTS — A collective bargaining agreement which is

in effect on April 15, 1986, and which permits compensatory time off in lieu of overtime compensation

shall remain in effect until its expiration date unless

otherwise modified, except that compensatory time

shall be provided after April 14, 1986, in accordance

with section 7(o) of the Fair Labor Standards Act of

1938 (as added by subsection (a)).

(c) LIABILITY AND DEFERRED PAYMENT — (1) No

State, political subdivision of a State, or interstate governmental agency shall be liable under section 16 of

the Fair Labor Standards Act of 1938 for a violation

of section 6 (in the case of a territory or possession of

the United States), 7, or 11(c) (as it relates to section 7)

of such Act occurring before April 15, 1986, with

respect to any employee of the State, political subdivision, or agency who would not have been covered

by such Act under the Secretary of Labor's special

enforcement policy on January 1, 1985, and published

in sections 775.2 and 775.4 of title 29 of the Code of

Federal Regulations.

(2) A State, political subdivision of a State,

or interstate governmental agency may defer until

August 1, 1986, the payment of monetary overtime compensation under section 7 of the Fair Labor Standards Act of 1938 for hours worked after

April 14, 1986.

VOLUNTEERS

(b) REGULATIONS. — Not later than March 15, 1986,

the Secretary of Labor shall issue regulations to carry

out paragraph (4) of section 3(e) (as amended by subsection (a) of this section).

(c) CURRENT PRACTICE. — If, before April 15, 1986,

the practice of a public agency was to treat certain

individuals as volunteers, such individuals shall until

April 15, 1986, be considered, for purposes of the Fair

Labor Standards Act of 1938, as volunteers and not

as employees. No public agency which is a State, a

political subdivision of a State, or an interstate governmental agency shall be liable for a violation of section 6 occurring before April 15, 1986, with respect to

services deemed by that agency to have been performed for it by an individual on a voluntary basis.

EFFECTIVE DATE

SEC. 6. The amendments made by this Act shall

take effect April 15, 1986. The Secretary of Labor shall

before such date promulgate such regulations as may

be required to implement such amendments.

EFFECT OF AMENDMENTS

SEC. 7. The amendments made by this Act shall not

affect whether a public agency which is a State, political subdivision of a State, or an interstate governmental agency is liable under section 16 of the Fair

Labor Standards Act of 1938 for a violation of section

5, 7, or 11 of such Act occurring before April 15, 1986,

with respect to any employee of such public agency

who would have been covered by such Act under the

Secretary of Labor’s special enforcement policy on

January 1, 1985, and published in section 775.3 of title

29 of the Code of Federal Regulations.
40

DISCRIMINATION

SEC. 8. A public agency which is a State, political

subdivision of a State, or an interstate governmental

agency and which discriminates or has discriminated

against an employee with respect to the employee’s

wages or other terms or conditions of employment

because on or after February 19, 1985, the employee

asserted coverage under section 7 of the Fair Labor

Standards Act of 1938 shall be held to have violated

section 15(a)(3) of such Act. The protection against

discrimination afforded by the preceding sentence

shall be available after August 1, 1986, only for an employee who takes an action described in section

15(a)(3) of such Act.

Approved November 13, 1985.
41

(F) the effect (if any) of the full-time student certification program on employment and

unemployment;

(G) the employment and unemployment effects (if any) of the minimum wage;

(H) the exemptions from the minimum wage

and overtime requirements of that Act;

(I) the relationship (if any) between the Federal minimum wage rates and public assistance

programs, including the extent to which employees

at such rates are also eligible to receive food stamps

and other public assistance;

(J) the overall level of noncompliance with that

Act; and

(K) the demographic profile of minimum wage

workers.

(2) The Commission shall conduct a study concerning the extent to which the exemptions from the

minimum wage and overtime requirements of the Fair

Labor Standards Act of 1938 may apply to employees

of conglomerates, and shall make a report, within one

year after the date of the appointment of the members

of the Commission, of the results of such study. For the

purposes of this paragraph a “conglomerate” means an

establishment (A) which controls, is controlled by, or is

under common control with, another establishment the

activities of which are not related for a common business

purpose to the activities of the establishment employing

such employees and (B) whose annual gross volume of

sales made or business done, when combined with the

annual gross volume of sales made or business done

by each establishment which controls, is controlled by,

or is under common control with, the establishment

employing such employee, exceeds $100,000,000

(exclusive of excise taxes at the retail level which are

separately stated). The report shall include an analysis

of the effects of eliminating the exemptions from the

minimum wage and overtime requirements of such Act

that may currently apply to the employees of such

conglomerates.

(3) The Commission shall make a report of the

results of the study conducted pursuant to paragraph

(1) thirty-six months after the date of the appointment

of the members of the Commission. The report shall

include such recommendations for legislation as the

Commission determines are appropriate. The Commission may make interim or additional reports which it

determines are appropriate. Each report shall be made

to the President and to the Congress. The Commission

shall cease to exist thirty days after the submission of

the report required by this paragraph.

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1977

(91 Stat. 1245)

[PUBLIC LAW 95–151]

[95TH CONGRESS] [FIRST SESSION]

AN ACT

To amend the Fair Labor Standards Act of 1938 to increase

the minimum wage rate under that Act, and for other

purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Fair Labor Standards

Amendments of 1977.”

[Sections 2(a) through 2(d) and sections 3 through 14,

inclusive, of the Fair Labor Standards Amendments of 1977

amend the Fair Labor Standards Act of 1938, and are

incorporated in their proper place in the Act.]

Increase in Minimum Wage

SEC. 2. * * *

(e) (1) There is established the Minimum Wage

Study Commission (hereinafter in this subsection referred to as the “Commission”) which shall conduct a

study of the Fair Labor Standards Act of 1938 and the

social, political, and economic ramifications of the

minimum wage, overtime, and other requirements of that

Act. Such study shall include but not be limited to —

(A) the beneficial effects of the minimum

wage, including its effect in ameliorating poverty

among working citizens;

(B) the inflationary impact (if any) of increases

in the minimum wage prescribed by that Act;

(C) the effect (if any) such increases have on

wages paid employees at a rate in excess of the

rate prescribed by that Act;

(D) the economic consequence (if any) of

authorizing an automatic increase in the rate prescribed in that Act on the basis of an increase in a

wage, price, or other index;

(E) the employment and unemployment

effects (if any) of providing a different minimum

wage for youth, and the employment and unemployment effects (if any) on handicapped and

aged individuals of an increase in such rate and of

providing a different minimum wage rate for such

individuals;
42

(4) (A) The Commission shall consist of eight

members as follows:

(i) Two members appointed by the

Secretary of Labor.

(ii) Two members appointed by the

Secretary of Commerce.

(iii) Two members appointed by the

Secretary of Agriculture.

(iv) Two members appointed by the

Secretary of Health, Education, and Welfare.

The appointments authorized under this paragraph shall

be made within 180 days after the date of enactment of

this subsection.

(B) The Chairperson shall be selected by the

members of the Commission. Any vacancy in the

Commission shall not affect its powers and shall

be filled in the same manner in which the original

appointment was made.

(C) (i) Except as provided in clause (ii),

members of the Commission who are officers

or employees of the Federal Government shall

serve without compensation. Other members,

while engaged in the activities of the Commission, shall be paid at a rate equal to the

per diem equivalent of the annual rate payable

for grade GS-18 of the General Schedule under section 5332 of title 5, United States Code.

(ii) While away from their homes or

regular places of business in the performance

of services for the Commission, members of

the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service

are allowed expenses under section 5703 of

title 5 of the United States Code.

(5) (A) The Commission may prescribe such

rules as may be necessary to carry out its duties

under this subsection.

(B) The Commission may hold such hearings, sit and act at such times and places, take such

testimony, and receive such evidence as it deems

advisable.

(C) Upon request of the Commission, the

head of any Federal department or agency is authorized to detail, on a reimbursable basis, any of

the personnel of such department or agency to the

Commission to assist it in carrying out its duties

under this subsection.

(D) The Department of Labor shall furnish

such professional, technical, and research assistance as required by the Commission.

(E) The Administrator of General Services

shall provide to the Commission on a reimbursable

basis such administrative support services as the

Commission may request to carry out its duties

under this subsection.

(F) The Commission may secure directly

from any department or agency of the United States

such information as the Commission may require

to carry out its duties under this subsection. Upon

request of the Commission, the head of any such

department or agency shall furnish such information to the Commission.

(G) The Commission may use the United

States mails in the same manner and upon the

same conditions as other departments and agencies of the United States.

(6) (A) The Chairperson may appoint an execucutive director of the Commission who shall perform such duties as the Chairperson may prescribe.

(B) With approval of the Chairperson, the

executive director may appoint and fix the pay of

such clerical personnel as are necessary for the

Commission to carry out its duties.

(C) The executive director and staff shall be

appointed without regard to the provisions of title 5,

United States Code, governing appointments in

the competitive service, and shall be paid without

regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to

classification and General Schedule pay rates but

at rates not in excess of the annual rate payable for

grade GS-18 of the General Schedule under section 5332 of such title.

(D) The executive director, with the concurrence of the Chairperson, may obtain temporary and

intermittent services of experts and consultants in

accordance with the provisions of section 3109 of

title 5, United States Code.

Effective Date

SEC. 15. (a) Except as provided in sections 3, 14, and

subsection (b) of this section, the amendments made by

this Act shall take effect January 1, 1978.

(b) The amendments made by sections 8, 9, 11, 12,

and 13 shall take effect on the date of the enactment of

this Act.

(c) On and after the date of the enactment of this Act,

the Secretary of Labor shall take such administrative action as may be necessary for the implementation of the

amendments made by this Act.

Approved November 1, 1977.
43

[PUBLIC LAW 93–259]

[93RD CONGRESS] [SECOND SESSION]

AN ACT

To amend the Fair Labor Standards Act of 1938 to increase

the minimum wage rate under that Act, and for other

purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Fair Labor Standards

Amendments of 1974.”

[Sections 2 through 6(d)(1) and sections 7 through 27,

inclusive, of the Fair Labor Standards Amendments

of 1974 amend the Fair Labor Standards Act of 1938,

and are incorporated in their proper place in the Act.

Section 6(d)(2)(A) and (B) amends the Portal-to-Portal

Act of 1947 and is set forth below.]

Federal and State Employees

SEC. 6. * * *

(2) (A) Section 6 of the Portal-to-Portal Pay Act

of 1947 is amended by striking out the period at

the end of paragraph (c) and by inserting in lieu

thereof a semicolon and by adding after such

paragraph the following:

“(d) with respect to any cause of action brought under

section 16(b) of the Fair Labor Standards Act of 1938

against a State or a political subdivision of a State in a

district court of the United States on or before April 18,

1973, the running of the statutory periods of limitation

shall be deemed suspended during the period beginning

with the commencement of any such action and ending

one hundred and eighty days after the effective date of

the Fair Labor Standards Amendments of 1974, except

that such suspensions shall not be applicable if in such

action judgement has been entered for the defendant on

the grounds other than State immunity from Federal

jurisdiction.”

(B) Section 11 of such Act is amended by

striking out “(b)” after “section 16.”

Effective Date

SEC. 29. (a) Except as otherwise specifically provided,

the amendments made by this Act shall take effect on

May 1, 1974.

(b) Notwithstanding subsection (a), on and after the

date of the enactment of this Act the Secretary of Labor

is authorized to prescribe necessary rules, regulations,

and orders with regard to the amendments made by this

Act.

Approved April 8, 1974.

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1974

(88 Stat. 55)
44

further instructed to report to the Congress by July 1, 1967,

the findings of such survey with appropriate recommendations.

CANAL ZONE EMPLOYEES AND

PANAMA CANAL STUDY

SEC. 604.The Secretary of Labor, in cooperation with

the Secretary of Defense and the Secretary of State, shall

(1) undertake a study with respect to (A) wage rates

payable to Federal employees in the Canal Zone engaged

in employment of the kind described in paragraph (7) of

section 202 of the Classification Act of 1949 (5 U.S.C.

1082(7)) and (B) the requirements of an effective and

economical operation of the Panama Canal, and (2) report

to the Congress not later than July 1, 1968, the results of

his study together with such recommendations as he may

deem appropriate.

STUDY OF WAGES PAID HANDICAPPED

CLIENTS IN SHELTERED WORKSHOPS

SEC. 605.The Secretary of Labor is hereby instructed

to commence immediately a complete study of wage

payments to handicapped clients of sheltered workshops

and of the feasibility of raising existing wage standards

in such workshops. The Secretary is further instructed to

report to the Congress by July 1, 1967, the findings of such

study with appropriate recommendations.

PREVENTION OF DISCRIMINATION

BECAUSE OF AGE

SEC. 606. The Secretary of Labor is hereby directed to

submit to the Congress not later than January 1, 1967, his

specific legislative recommendations for implementing the

conclusions and recommendations contained in his report

on age discrimination in employment made pursuant to

section 715 of Public Law 88–352. Such legislative recommendations shall include, without limitation, provisions specifying appropriate enforcement procedures,

a particular administering agency, and the standards,

coverage, and exemptions, if any, to be included in the

proposed enactment.

Approved September 23, 1966.

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1966

(80 Stat. 830)

[PUBLIC LAW 89–601]

[89TH CONGRESS] [SECOND SESSION]

AN ACT

To amend the Fair Labor Standards Act of 1938 to extend

its protection to additional employees, to raise the minimum

wage, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Fair Labor Standards

Amendments of 1966.”

[Sections 101 to 501, inclusive, and section 601 (a) of the

Fair Labor Standards Amendments of 1966 amend the Fair

Labor Standards Act of 1938, and are incorporated in their

proper place in the Act.]

STATUTE OF LIMITATIONS

SEC. 601. * * *

(b) Section 6(a) of the Portal-to-Portal Act of 1947

(Public Law 49, Eightieth Congress) is amended by

inserting before the semicolon at the end thereof the

following: “, except that a cause of action arising out of a

willful violation may be commenced within three years

after the cause of action accrued.”

EFFECTIVE DATE

SEC. 602. Except as otherwise provided in this Act,

the amendments made by this Act shall take effect on

February 1, 1967. On and after the date of the enactment

of this Act the Secretary is authorized to promulgate

necessary rules, regulations, or orders with regard to the

amendments made by this Act.

STUDY OF EXCESSIVE OVERTIME

SEC. 603. The Secretary of Labor is hereby instructed

to commence immediately a complete study of present

practices dealing with overtime payments for work in

excess of forty hours per week and the extent to which

such overtime work impedes the creation of new job opportunities in American industry. The Secretary is
45

[PUBLIC LAW 87–30]

[87TH CONGRESS] [FIRST SESSION]

AN ACT

To amend the Fair Labor Standards Act of 1938, as

amended, to provide coverage for employees of large

enterprises engaged in retail trade or service and of other

employers engaged in commerce or in the production of

goods for commerce, to increase the minimum wage under

the Act of $1.25 an hour, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Fair Labor Standards

Amendments of 1961.”

[Sections 2 to 12, inclusive, of the Fair Labor Standards Amendments of 1961 amend the Fair Labor

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1961

(75 Stat. 65)

Standards Act of 1938, and are incorporated in their

proper place in the Act.]

EFFECTIVE DATE

SEC. 14. The amendments made by this Act shall take

effect upon the expiration of one hundred and twenty

days after the date of its enactment, except as otherwise

provided in such amendments and except that the

authority to promulgate necessary rules, regulations, or

orders with regard to amendments made by this

Act, under the Fair Labor Standards Act of 1938 and

amendments thereto, including amendments made by

this Act, may be exercised by the Secretary on and after

the date of enactment of this Act.

Approved May 5, 1961.
46

1 Effective May 24, 1950, all functions of Administrator were transferred to the

Secretary of Labor by Reorganization Plan No. 6 of 1950, 64 Stat. 1263. See text set

out under section 4(a) of the Fair Labor Standards Act.

2 The provisions of the repealed statute are now contained in substance in sections

7(e)(5), (6), (7), and (h) of the Fair Labor Standards Act, as amended.

ADDITIONAL PROVISIONS OF FAIR LABOR STANDARDS AMENDMENTS OF 1949

(63 Stat. 917)

[PUBLIC LAW 398 — 81ST CONGRESS]

[CHAPTER 736 — FIRST SESSION]

AN ACT

To provide for the amendment of the Fair Labor Standards

Act of 1938, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Fair Labor Standards

Amendments of 1949.”

[Sections 2 to 15, inclusive, of the Fair Labor Standards

Amendments of 1949 amend the Fair Labor Standards Act

of 1938, and are incorporated in their proper place in the

Act.]

MISCELLANEOUS AND EFFECTIVE DATE

SEC. 16. (a) The amendments made by this Act shall

take effect upon the expiration of ninety days from the date

of its enactment; except that the amendment made by

section 4 shall take effect on the date of its enactment.

(b) Except as provided in section 3(o) and in the last

sentence of section 16(c) of the Fair Labor Standards Act

of 1938, as amended, no amendment made by this Act shall

be construed as amending, modifying, or repealing any

provision of the Portal-to-Portal Act of 1947.

(c) Any order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the

Secretary of Labor, and any agreement entered into by

the Administrator or the Secretary, in effect under the

provisions of the Fair Labor Standards Act of 1938, as

amended, on the effective date of this Act, shall remain in

effect as an order, regulation, interpretation, or agreement

of the Administrator or the Secretary, as the case may be,

pursuant to this Act, except to the extent that any such

order, regulation, interpretation, or agreement may be

inconsistent with the provisions of this Act, or may from time

to time be amended, modified, or rescinded by the

Administrator or the Secretary, as the case may be, in

accordance with the provisions of this Act.1

(d) No amendment made by this Act shall affect any

penalty or liability with respect to any act or omission

occurring prior to the effective date of this Act; but, after

the expiration of two years from such effective date, no

action shall be instituted under section 16(b) of the Fair

Labor Standards Act of 1938, as amended, with respect to

any liability accruing thereunder for any act or omission

occurring prior to the effective date of this Act.

(e) No employer shall be subject to any liability or

punishment under the Fair Labor Standards Act of 1938,

as amended (in any action or proceeding commenced prior

to or on or after the effective date of this Act), on account of

the failure of said employer to pay an employee compensation for any period of overtime work performed prior

to July 20, 1949, if the compensation paid prior to July 20,

1949 for such work was at least equal to the compensation

which would have been payable for such work had section

7(d) (6) and (7) and section 7(g) of the Fair Labor Standards Act of 1938, as amended, been in effect at the time

of such payment.

(f) Public Law 177, Eighty-first Congress, approved

July 20, 1949, is hereby repealed as of the effective date of

this Act.2

Approved, October 26, 1949.
47

[PUBLIC LAW 49 — 80TH CONGRESS]

[CHAPTER 52 — FIRST SESSION]

[H.R. 2157]

AN ACT

To relieve employers from certain liabilities and punishments under the Fair Labor Standards Act of 1938, as

amended, the Walsh–Healey Act, and the Bacon–Davis Act,

and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

PART I

FINDINGS AND POLICY

SECTION 1. (a) The Congress hereby finds that the

Fair Labor Standards Act of 1938, as amended, has

been interpreted judicially in disregard of long-established

customs, practices, and contracts between employers and

employees, thereby creating wholly unexpected liabilities,

immense in amount and retroactive in operation, upon

employers with the results that, if said Act as so interpreted

or claims arising under such interpretations were permitted

to stand, (1) the payment of such liabilities would bring

about financial ruin of many employers and seriously impair

the capital resources of many others, thereby resulting in

the reduction of industrial operations, halting of expansion

and development, curtailing employment, and the earning

power of employees; (2) the credit of many employers would

be seriously impaired; (3) there would be created both an

extended and continuous uncertainty on the part of industry,

both employer and employee, as to the financial condition

of productive establishments and a gross inequality of

competitive conditions between employers and between

industries; (4) employees would receive windfall payments,

including liquidated damages, of sums for activities performed by them without any expectation of reward beyond

that included in their agreed rates of pay; (5) there would

occur the promotion of increasing demands for payment to

employees for engaging in activities no compensation for

which had been contemplated by either the employer or

employee at the time they were engaged in; (6) voluntary

collective bargaining would be interfered with and industrial

disputes between employees and employers and between

employees and employees would be created; (7) the courts

of the country would be burdened with excessive and needless litigation and champertous practices would be encouraged; (8) the Public Treasury would be deprived of large

sums of revenues and public finances would be seriously

deranged by claims against the Public Treasury for refunds

of taxes already paid; (9) the cost to the Government of

goods and services heretofore and hereafter purchased by

its various departments and agencies would be unreasonably increased and the Public Treasury would be seriously

affected by consequent increased cost of war contracts; and

(10) serious and adverse effects upon the revenues of Federal, State, and local governments would occur.

The Congress further finds that all of the foregoing constitutes a substantial burden on commerce and

a substantial obstruction to the free flow of goods in

commerce.

The Congress, therefore, further finds and declares that

it is in the national public interest and for the general

welfare, essential to national defense, and necessary to aid,

protect, and foster commerce, that this Act be enacted.

The Congress further finds that the varying and extended

periods of time for which, under the laws of the several

States, potential retroactive liability may be imposed upon

employers, have given and will give rise to great difficulties

in the sound and orderly conduct of business and industry.

The Congress further finds and declares that all of the

results which have arisen or may arise under the Fair Labor

Standards Act of 1938, as amended, as aforesaid, may

(except as to liability for liquidated damages) arise with

respect to the Walsh–Healey and Bacon–Davis Acts and

that it is therefore, in the national public interest and for

the general welfare, essential to national defense, and

necessary to aid, protect, and foster commerce, that this

Act shall apply to the Walsh–Healey Act and the Bacon–

Davis Act.

(b) It is hereby declared to be the policy of the Congress

in order to meet the existing emergency and to correct

existing evils (1) to relieve and protect interstate commerce

from practices which burden and obstruct it; (2) to protect

the right of collective bargaining; and (3) to define and limit

the jurisdiction of the courts.

PERTINENT PROVISIONS AFFECTING THE FAIR LABOR STANDARDS ACT

FROM THE PORTAL-TO-PORTAL ACT OF 1947

(61 Stat. 84)
48

1 The final paragraph of section 4(a) was added by section 2102 of the Small

Business Job Protection Act of 1996, effective August 20, 1996. Sections 2101, 2102,

and 2103 of that Act may be cited as the Employee Commuting Flexibility Act of

1996.

2 As amended by section 601 of the Fair Labor Standards Amendments of 1966,

80 Stat. 830.

3 Added by the Fair Labor Standards Amendments of 1974, 88 Stat. 55.

* * * * *

PART III

FUTURE CLAIMS

SEC. 4. RELIEF FROM CERTAIN FUTURE CLAIMS

UNDER THE FAIR LABOR STANDARDS ACT OF 1938, AS

AMENDED, THE WALSH–HEALEY ACT, AND THE

BACON–DAVIS ACT. —

(a) Except as provided in subsection (b), no employer

shall be subject to any liability or punishment under the

Fair Labor Standards Act of 1938, as amended, the Walsh–

Healey Act, or the Bacon–Davis Act, on account of the

failure of such employer to pay an employee minimum

wages, or to pay an employee overtime compensation, for

or on account of any of the following activities of such

employee engaged in on or after the date of the enactment

of this Act —

(1) walking, riding, or traveling to and from the

actual place of performance of the principal activity or

activities which such employee is employed to perform,

and

(2) activities which are preliminary to or postliminary to said principal activity or activities,

which occur either prior to the time on any particular

workday at which such employee commences, or subsequent

to the time on any particular workday at which he ceases,

such principal activity or activities.

For purposes of this subsection, the use of an employer’s

vehicle for travel by an employee and activities performed

by an employee which are incidental to the use of such

vehicle for commuting shall not be considered part of

the employee’s principal activities if the use of such

vehicle for travel is within the normal commuting area

for the employer’s business or establishment and the use

of the employer’s vehicle is subject to an agreement on

the part of the employer and the employee or representative of such employee.1

(b) Not withstanding the provisions of subsection (a)

which relieve an employer from liability and punishment

with respect to an activity, the employer shall not be so

relieved if such activity is compensable by either —

(1) an express provision of a written or nonwritten

contract in effect, at the time of such activity, between

such employee, his agent, or collective-bargaining representative and his employer; or

(2) a custom or practice in effect, at the time of such

activity, at the establishment or other place where such

employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect

at the time of such activity, between such employee, his

agent, or collective-bargaining representative and his

employer.

(c) For the purposes of subsection (b), an activity shall

be considered as compensable under such contract provision

or such custom or practice only when it is engaged in during

the portion of the day with respect to which it is so made

compensable.

(d) In the application of the minimum wage and overtime

compensation provisions of the Fair Labor Standards Act

of 1938, as amended, of the Walsh–Healey Act, or of the

Bacon–Davis Act, in determining the time for which an

employer employs an employee with respect to walking,

riding, traveling or other preliminary or postliminary

activities described in subsection (a) of this section, there

shall be counted all that time, but only that time, during

which the employee engages in any such activity which is

compensable within the meaning of subsections (b) and (c)

of this section.

PART IV

MISCELLANEOUS

* * * * *

SEC. 6. STATUTE OF LIMITATIONS. — Any action commenced on or after the date of the enactment of this Act to

enforce any cause of action for unpaid minimum wages,

unpaid overtime compensation, or liquidated damages,

under the Fair Labor Standards Act of 1938, as amended,

the Walsh–Healey Act, or the Bacon–Davis Act —

(a) if the cause of action accrues on or after the date of

the enactment of this Act — may be commenced within

two years after the cause of action accrued, and every such

action shall be forever barred unless commenced within

two years after the cause of action accrued, except that a

cause of action arising out of a willful violation may be

commenced within three years after the cause of action

accrued;2

* * * * *

(d) with respect to any cause of action brought under

section 16(b) of the Fair Labor Standards Act of 1938

against a State or a political subdivision of a State in a

district court of the United States on or before April 18,

1973, the running of the statutory periods of limitation

shall be deemed suspended during the period beginning

with the commencement of any such action and ending

one hundred and eighty days after the effective date of

the Fair Labor Standards Amendments of 1974, except

that such suspension shall not be applicable if in such

action judgment has been entered for the defendant on

the grounds other than State immunity from Federal

jurisdiction.3
49

4 The Fair Labor Standards Amendments of 1974 struck “(b)” after “section 16.”

SEC. 7. DETERMINATION OF COMMENCEMENT OF

FUTURE ACTIONS. — In determining when an action is

commenced for the purposes of section 6, an action commenced on or after the date of the enactment of this Act

under the Fair Labor Standards Act of 1938, as amended,

the Walsh–Healey Act, or the Bacon–Davis Act, shall be

considered to be commenced on the date when the complaint

is filed; except that in the case of a collective or class action

instituted under the Fair Labor Standards Act of 1938, as

amended, or the Bacon–Davis Act, it shall be considered to

be commenced in the case of any individual claimant —

(a) on the date when the complaint is filed, if he is

specifically named as a party plaintiff in the complaint and

his written consent to become a party plaintiff is filed on

such date in the court in which the action is brought; or

(b) if such written consent was not so filed or if his name

did not so appear — on the subsequent date on which such

written consent is filed in the court in which the action was

commenced.

* * * * *

SEC. 10. RELIANCE IN FUTURE ON ADMINISTRATIVE

RULINGS, ETC. —

(a) In any action or proceeding based on any act or

omission on or after the date of the enactment of this Act,

no employer shall be subject to any liability or punishment

for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor

Standards Act of 1938, as amended, the Walsh–Healey Act,

or the Bacon–Davis Act, if he pleads and proves that the

act or omission complained of was in good faith in conformity

with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the

agency of the United States specified in subsection (b) of

this section, or any administrative practice or enforcement

policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established,

shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative

regulation, order, ruling, approval, interpretation, practice,

or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal

effect.

(b) The agency referred to in subsection (a) shall be —

(1) in the case of the Fair Labor Standards Act of

1938, as amended — the Administrator of the Wage and

Hour Division of the Department of Labor;

* * * * *

SEC. 11. LIQUIDATED DAMAGES. — In any action

commenced prior to or on or after the date of the enactment

of this Act to recover unpaid minimum wages, unpaid

overtime compensation, or liquidated damages, under the

Fair Labor Standards Act of 1938, as amended, if the

employer shows to the satisfaction of the court that the act

or omission giving rise to such action was in good faith and

that he had reasonable grounds for believing that his act or

omission was not a violation of the Fair Labor Standards

Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount

thereof not to exceed the amount specified in section 164

 of

such Act.

* * * * *

SEC. 13. DEFINITIONS. —

(a) When the terms “employer,” “employee,” and

“wage” are used in this Act in relation to the Fair Labor

Standards Act of 1938, as amended, they shall have the same

meaning as when used in such Act of 1938.

* * * * *

(e) As used in section 6 of the term “State” means any

State of the United States or the District of Columbia or

any Territory or possession of the United States.

SEC. 14. SEPARABILITY. — If any provision of this Act

or the application of such provision to any person or circumstance is held invalid, the remainder of this Act and

the application of such provision to other persons or circumstances shall not be affected thereby.

SEC. 15. SHORT TITLE. — This Act may be cited as the

“Portal-to-Portal Act of 1947.”

Approved May 14, 1947.
50

[PUBLIC LAW 88–38]

[88TH CONGRESS, S. 1409]

[JUNE 10, 1963]

AN ACT

To prohibit discrimination on account of sex in the payment

of wages by employers engaged in commerce or in the

production of goods for commerce.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the “Equal Pay Act of 1963.”

DECLARATION OF PURPOSE

SEC. 2. (a) The Congress hereby finds that the

existence in industries engaged in commerce or in the

production of goods for commerce of wage differentials

based on sex —

(1) depresses wages and living standards for employees necessary for their health and efficiency;

(2) prevents the maximum utilization of the available labor resources;

(3) tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;

(4) burdens commerce and the free flow of goods

in commerce; and

(5) constitutes an unfair method of competition.

(b) It is hereby declared to be the policy of this Act,

through exercise by Congress of its power to regulate

commerce among the several States and with foreign

nations, to correct the conditions above referred to in such

industries.

[Section 3 of the Equal Pay Act of 1963 amends section 6

of the Fair Labor Standards Act by adding a new subsection (d). The amendment is incorporated in the revised

text of the Act.]

EFFECTIVE DATE

SEC. 4. The amendments made by this Act shall take

effect upon the expiration of one year from the date of its

enactment: Provided, That in the case of employees

covered by a bona fide collective bargaining agreement in

effect at least thirty days prior to the date of enactment of

this Act, entered into by a labor organization (as defined in

section 6(d)(4) of the Fair Labor Standards Act of 1938, as

amended), the amendments made by this Act shall take

effect upon the termination of such collective bargaining

agreement or upon the expiration of two years from the

date of enactment of this Act, whichever shall first occur.

Approved June 10, 1963, 12 m.

ADDITIONAL PROVISIONS OF EQUAL PAY ACT OF 1963

(77 Stat. 56)