Page 93 TITLE 29—LABOR § 215

EFFECTIVE DATE OF 1961 AMENDMENT

Amendment by Pub. L. 87–30 effective upon expiration of one hundred and twenty days after May 5, 1961,

except as otherwise provided, see section 14 of Pub. L.

87–30, set out as a note under section 203 of this title.

EFFECTIVE DATE OF 1949 AMENDMENT

Amendment by act Oct. 26, 1949, effective ninety days

after Oct. 26, 1949, see section 16(a) of act Oct. 26, 1949,

set out as a note under section 202 of this title.

TRANSFER OF FUNCTIONS

For transfer of functions of other officers, employees,

and agencies of Department of Labor, with certain exceptions, to Secretary of Labor, with power to delegate,

see Reorg. Plan No. 6 of 1950, §§1, 2, 15 F.R. 3174, 64 Stat.

1263, set out in the Appendix to Title 5, Government Organization and Employees.

RULES, REGULATIONS, AND ORDERS PROMULGATED WITH

REGARD TO 1966 AMENDMENTS

Secretary authorized to promulgate necessary rules,

regulations, or orders on and after the date of the enactment of Pub. L. 89–601, Sept. 23, 1966, with regard to

the amendments made by Pub. L. 89–601, see section 602

of Pub. L. 89–601, set out as a note under section 203 of

this title.

STUDY OF WAGES PAID HANDICAPPED CLIENTS IN

SHELTERED WORKSHOPS

Section 605 of Pub. L. 89–601 instructed Secretary of

Labor to commence a complete study of wage payments to handicapped clients of sheltered workshops

and of feasibility of raising existing wage standards in

such workshops. The Secretary was directed to report

to Congress by July 1, 1967, findings of such study with

appropriate recommendations.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 215, 721, 795 of

this title.

§ 215. Prohibited acts; prima facie evidence

(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 206 or section 207 of this title, or in

violation of any regulation or order of the Secretary issued under section 214 of this title; except that no provision of this chapter 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 chapter shall excuse any common carrier from its obligation to accept any

goods for transportation; and except that 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 this chapter, and who acquired such goods for value without notice of

any such violation, shall not be deemed unlawful;

(2) to violate any of the provisions of section

206 or section 207 of this title, or any of the

provisions of any regulation or order of the

Secretary issued under section 214 of this title;

(3) to discharge or in any other manner discriminate against any employee because such

employee has filed any complaint or instituted

or caused to be instituted any proceeding

under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;

(4) to violate any of the provisions of section

212 of this title;

(5) to violate any of the provisions of section

211(c) of this title, or any regulation or order

made or continued in effect under the provisions of section 211(d) of this title, 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.

(b) For the purposes of subsection (a)(1) of this

section 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.

(June 25, 1938, ch. 676, §15, 52 Stat. 1068; Oct. 26,

1949, ch. 736, §13, 63 Stat. 919; 1950 Reorg. Plan

No. 6, §§1, 2, eff. May 24, 1950, 15 F.R. 3174, 64

Stat. 1263.)

AMENDMENTS

1949—Subsec. (a)(1). Act Oct. 26, 1949, §13(a), inserted

provision protecting purchaser in good faith in sale of

goods produced in violation of this chapter.

Subsec. (a)(5). Act Oct. 26, 1949, §13(b), inserted ‘‘or

any regulation or order made or continued in effect

under the provisions of section 211(d) of this title’’ after

‘‘211(c) of this title’’.

EFFECTIVE DATE OF 1949 AMENDMENT

Amendment by act Oct. 26, 1949, effective ninety days

after Oct. 26, 1949, see section 16(a) of act Oct. 26, 1949,

set out as a note under section 202 of this title.

TRANSFER OF FUNCTIONS

For transfer of functions of other officers, employees,

and agencies of Department of Labor, with certain exceptions, to Secretary of Labor, with power to delegate,

see Reorg. Plan No. 6 of 1950, §§1, 2, 15 F.R. 3174, 64 Stat.

1263, set out in the Appendix to Title 5, Government Organization and Employees.

LIABILITY OF PUBLIC AGENCY FOR DISCRIMINATION

AGAINST EMPLOYEE FOR ASSERTION OF COVERAGE

Pub. L. 99–150, §8, Nov. 13, 1985, 99 Stat. 791, provided

that: ‘‘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 [29 U.S.C. 207] shall be held to

have violated section 15(a)(3) of such Act [29 U.S.C.

215(a)(3)]. 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.’’

CROSS REFERENCES

Prohibition of age discrimination under this section,

see section 626 of this title.
§ 216 TITLE 29—LABOR Page 94

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 206, 216, 217, 626

of this title.

§ 216. Penalties

(a) Fines and imprisonment

Any person who willfully violates any of the

provisions of section 215 of this title 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) Damages; right of action; attorney’s fees and

costs; termination of right of action

Any employer who violates the provisions of

section 206 or section 207 of this title 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 215(a)(3) of this title

shall be liable for such legal or equitable relief

as may be appropriate to effectuate the purposes

of section 215(a)(3) of this title, 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. 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 217 of this title 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 206 or section 207 of this title 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 215(a)(3) of this title.

(c) Payment of wages and compensation; waiver

of claims; actions by the Secretary; limitation

of actions

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 206 or section

207 of this title, 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 unpaid minimum wages or overtime compensation and an equal amount as liquidated damages. The right provided by subsection (b) of this section to bring an action by

or on behalf of any employee to recover the liability specified in the first sentence 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 206 and 207 of this title or liquidated or

other damages provided by this subsection

owing to such employee by an employer liable

under the provisions of subsection (b) of this

section, unless such action is dismissed without

prejudice on motion of the Secretary. Any sums

thus recovered by the Secretary of Labor 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 of Labor,

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 of Labor under this subsection for the

purposes of the statutes of limitations provided

in section 255(a) of this title, 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.

(d) Savings provisions

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 chapter or the Portal-to-Portal Act of 1947

[29 U.S.C. 251 et seq.] on account of his failure to

comply with any provision or provisions of this

chapter or such Act (1) with respect to work

heretofore or hereafter performed in a workplace to which the exemption in section 213(f) of

this title 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 206(a)(3)

of this title at any time prior to the establishment by the Secretary, as provided therein, of a

minimum wage rate applicable to such work.

(e) Civil penalties for child labor violations

Any person who violates the provisions of section 212 of this title or section 213(c)(5) of this

title, relating to child labor, or any regulation

issued under section 212 of this title or section

213(c)(5) of this title, shall be subject to a civil