The Fair Labor Standards Act

Of 1938, As Amended

U.S. Department of Labor

Wage and Hour Division

WH Publication 1318

Revised May 2011

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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”.

§ 201. Short title

This chapter may be cited as the “Fair Labor Standards Act of 1938”.

§ 202. Congressional finding and declaration of policy

(a) The Congress 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 well-being 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. That

Congress further finds that the employment of persons in domestic service in

households affects commerce.

(b) It is declared to be the policy of this chapter, 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.

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Sec. 203

§ 203. Definitions

As used in this chapter—

(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.

(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, 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),

(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 Regulatory Commission; and

(C) any individual employed by a State, political subdivision of a

State, or an interstate governmental agency, other than such an

individual—

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Sec. 203(e)(2)(C)(i)
 

(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,

(III) is appointed by such an officeholder 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) 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) of this section, 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.

(4)

(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) The term “employee” does not include individuals who volunteer their

services solely for humanitarian purposes to private non-profit food banks and

who receive from the food banks groceries.

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Sec. 203(f)
 

(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 Title 12), the

raising of livestock, bees, fur-bearing 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 chapter 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.

(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, or

(2) any employee between the ages of sixteen and 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

4
 
Sec. 203(l)(2)
 

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 Administrator, 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 collectivebargaining 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 206(a)(1) of this title.

The additional amount on account of tips may not exceed the value of the tips

actually received by an employee. The preceding 2 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.

(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.

(o) Hours Worked.— In determining for the purposes of sections 206 and 207 of this

title 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.

(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.

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Sec. 203(r)
 

(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

(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,

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.

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Sec. 203(s)
 

(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);

(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.

(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 Regulatory Commission), a State, or a

political subdivision of a State; or any interstate governmental agency.

(y) “Employee in fire protection activities” means an employee, including a

firefighter, paramedic, emergency medical technician, rescue worker, ambulance

personnel, or hazardous materials worker, who—

7
 
Sec. 203(y)(1)
 

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

engage in fire 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.

§ 204. Administration

(a) Creation of Wage and Hour Division in Department of Labor;

Administrator

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 chapter referred to as the “Administrator”). The

Administrator shall be appointed by the President, by and with the advice and

consent of the Senate.

(b) Appointment, selection, classification, and promotion of employees by

Administrator

The Administrator may, subject to the civil-service laws, appoint such employees as

he deems necessary to carry out his functions and duties under this chapter and

shall fix their compensation in accordance with chapter 51 and subchapter III of

chapter 53 of Title 5. The Administrator 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 Administrator 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

Administrator, 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) Principal office of Administrator; jurisdiction

The principal office of the Administrator 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) Biennial report to Congress; studies of exemptions to hour and wage

provisions and means to prevent curtailment of employment opportunities

(1) The Secretary shall submit biennially in January a report to the Congress

covering his activities for the preceding two years and including such

information, data, and recommendations for further legislation in connection

with the matters covered by this chapter as he may find advisable. Such

report shall contain an evaluation and appraisal by the Secretary of the

minimum wages and overtime coverage established by this chapter, together

with his recommendations to the Congress. In making such evaluation and

appraisal, the Secretary shall take into consideration any changes which may

8
 
Sec. 204(d)(1)
 

have occurred in the cost of living and in productivity and the level of wages

in manufacturing, the ability of employers to absorb wage increases, and such

other factors as he may deem pertinent. Such report shall also include a

summary of the special certificates issued under section 214(b) of this title.

(2) The Secretary shall conduct studies on the justification or lack thereof for

each of the special exemptions set forth in section 213 of this title, 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.

(3) The Secretary shall conduct a continuing study on means to prevent

curtailment of employment opportunities for manpower groups which have

had historically high incidences of unemployment (such as disadvantaged

minorities, youth, elderly, and such other groups as the Secretary may

designate). The first report of the results of such study shall be transmitted to

the Congress not later than one year after the effective date of the Fair Labor

Standards Amendments of 1974. Subsequent reports on such study shall be

transmitted to the Congress at two-year intervals after such effective date.

Each such report shall include suggestions respecting the Secretary’s

authority under section 214 of this title.

(e) Study of effects of foreign production on unemployment; report to

President and Congress

Whenever the Secretary has reason to believe that in any industry under this chapter

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 chapter as

he may determine to be pertinent to such report.

(f) Employees of Library of Congress; administration of provisions by Office

of Personnel Management

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 chapter with respect to

such individuals. Notwithstanding any other provision of this chapter, or any other

law, the Director of the Office of Personnel Management is authorized to administer

the provisions of this chapter 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 Regulatory 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 216(b) of this title.

9
 
Sec. 205
 

§ 205. Repealed. Pub.L. 110-28, Title VIII, § 8103(c)(1)(A),

May 25, 2007, 121 Stat. 189

§ 206. Minimum wage

(a) Employees engaged in commerce; home workers in Puerto Rico and

Virgin Islands; employees in American Samoa; seamen on American vessels;

agricultural employees

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—

(A) $5.85 an hour beginning on the 60th day after May 25, 2007;

(B) $6.55 an hour, beginning 12 months after that 60th day; and

(C) $7.25 an hour, beginning 24 months after that 60th day:

(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 minimum hourly wage

rate applicable under the provisions of this section. The Administrator, 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;

(3) 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

10
 
Sec. 206(a)(4)
 

(4) if such employee is employed in agriculture, not less than the minimum

wage rate in effect under paragraph (1) after December 31, 1977.

(5) Redesignated (4)

(b) Additional applicability to employees pursuant to subsequent

amendatory provisions

Every employer shall pay to each of his employees (other than an employee to whom

subsection (a)(5) of this section 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 chapter by the Fair Labor Standards Amendments of

1966, title IX of the Education Amendments of 1972 [20 U.S.C.A. § 1681 et seq.], 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) of this section.

(c) Repealed. Pub.L. 104–188, [Title III], § 2104(c), Aug. 20, 1996, 110

Stat. 1929

(d) Prohibition of sex discrimination

(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

11
 
Sec. 206(d)(3)
 

be deemed to be unpaid minimum wages or unpaid overtime compensation

under this chapter.

(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) Employees of employers providing contract services to United States

(1) Notwithstanding the provisions of section 213 of this title (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 213 of this title (except

subsections (a)(1) and (f) thereof) and the provisions of the Service Contract

Act of 1965 [41 U.S.C.A. § 351 et seq.] 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) of this section, 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) Employees in domestic service

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

subsection (b) of this section unless such employee’s compensation for such

service would not because of section 209(a)(6) of the Social Security Act [42

U.S.C.A. § 409(a)(6)] constitute wages for the purposes of title II of such Act

[42 U.S.C.A. § 401 et seq.], 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 subsection (b) of this section.

12
 
Sec. 206(g)
 

(g) Newly hired employees who are less than 20 years old

(1) In lieu of the rate prescribed by subsection (a)(1) of this section, 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 215(a)(3) of this title.

(4) This subsection shall only apply to an employee who has not attained the

age of 20 years.

§ 207. Maximum hours

(a) Employees engaged in interstate commerce; additional applicability to

employees pursuant to subsequent amendatory provisions

(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 workweek is brought within the purview of

this subsection by the amendments made to this chapter 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,

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.

13
 
Sec. 207(b)
 

(b) Employment pursuant to collective bargaining agreement; employment

by independently owned and controlled local enterprise engaged in

distribution of petroleum products

No employer shall be deemed to have violated subsection (a) of this section 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 forty-six 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) of this section 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) 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 206 of this title,

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

14
 
Sec. 207(b)(3)(C)
 

any workweek, as the case may be, at a rate not less than one and one-half

times the regular rate at which he is employed.

(c), (d) Repealed. Pub.L. 93–259, § 19(e), Apr. 8, 1974, 88 Stat. 66

(e) “Regular rate” defined

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 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

Administrator 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 Administrator) 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 of 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) of this section 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

15
 
Sec. 207(e)(6)
 

than one and one-half times the rate established in good faith for like work

performed in nonovertime hours on other days;

(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; or

(8) any 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,

employer-provided 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) Employment necessitating irregular hours of work

No employer shall be deemed to have violated subsection (a) of this section by

employing any employee for a workweek in excess of the maximum workweek

16
 
Sec. 207(f)
 

applicable to such employee under subsection (a) of this section 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 206 of this title (whichever may

be applicable) and compensation at not less than one and one-half times 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) Employment at piece rates

No employer shall be deemed to have violated subsection (a) of this section 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 one-half 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 Administrator 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) of this section 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.

17
 
Sec. 207(h)
 

(h) Extra compensation creditable toward overtime compensation

(1) Except as provided in paragraph (2), sums excluded from the regular rate

pursuant to subsection (e) of this section 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) of this section shall be creditable toward overtime

compensation payable pursuant to this section.

(i) Employment by retail or service establishment

No employer shall be deemed to have violated subsection (a) of this section 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 one-half

times the minimum hourly rate applicable to him under section 206 of this

title, 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 commissions, 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) Employment in hospital or establishment engaged in care of sick, aged,

or mentally ill

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) of this section if, pursuant to an agreement or understanding arrived at between

the employer and the 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) Employment by public agency engaged in fire protection or law

enforcement activities

No public agency shall be deemed to have violated subsection (a) of this section 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

18
 
Sec. 207(k)(1)(A)
 

(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) in tours of duty of employees engaged in such activities in

work periods of 28 consecutive days in calendar year 1975; or

(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) Employment in domestic service in one or more households

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) of this section.

(m) Employment in tobacco industry

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) of this section 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

19
 
Sec. 207(m)(2)(B)
 

(B) such employment by such employer which is in excess of fortyeight 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.

(n) Employment by street, suburban or interurban electric railway, or local

trolley or motorbus carrier

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) of this section 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) Compensatory time

(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).

20
 
Sec. 207(o)(2)(B)
 

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.

(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) 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) of this section if—

(A) such employee is paid at a per-page rate which is not less than—

21
 
Sec. 207(o)(6)(A)(i)
 

(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) 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) Special detail work for fire protection and law enforcement employees;

occasional or sporadic employment; substitution

(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 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

22
 
Sec. 207(p)(1)(C)
 

(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) Maximum hour exemption for employees receiving remedial education

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) of this section 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—

(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.

(r)

(1) An employer shall provide—

(A) a reasonable break time for an employee to express breast milk for

her nursing child for 1 year after the child's birth each time such

employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free

from intrusion from coworkers and the public, which may be used by

an employee to express breast milk.

23
 
Sec. 207(r)(2)
 

(2) An employer shall not be required to compensate an employee receiving

reasonable break time under paragraph (1) for any work time spent for such

purpose.

(3) An employer that employs less than 50 employees shall not be subject to

the requirements of this subsection, if such requirements would impose an

undue hardship by causing the employer significant difficulty or expense when

considered in relation to the size, financial resources, nature, or structure of

the employer's business.

(4) Nothing in this subsection shall preempt a State law that provides greater

protections to employees than the protections provided for under this

subsection.

§ 208. Repealed. Pub.L. 110-28, Title VIII, § 8103(c)(1)(A),

May 25, 2007, 121 Stat. 189

§ 209. Attendance of witnesses

For the purpose of any hearing or investigation provided for in this chapter, the

provisions of sections 49 and 50 of Title 15 (relating to the attendance of witnesses

and the production of books, papers, and documents), are made applicable to the

jurisdiction, powers, and duties of the Administrator, the Secretary of Labor, and the

industry committees.

§ 210. Court review of wage orders in Puerto Rico and the

Virgin Islands

(a) Any person aggrieved by an order of the Secretary issued under section 208 of

this title 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. Upon the filing of such petition such court shall have exclusive jurisdiction to

affirm, modify (including provision for the payment of an appropriate minimum wage

rate), or set aside such order in whole or in part, so far as it is applicable to the

petitioner. 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

24
 
Sec. 210(a)
 

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.

(b) The commencement of proceedings under subsection (a) of this section shall

not, unless specifically ordered by the court, operate as a stay of the Administrator'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.

§ 211. Collection of data

(a) Investigations and inspections

The Administrator 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 chapter, 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

chapter, or which may aid in the enforcement of the provisions of this chapter.

Except as provided in section 212 of this title and in subsection (b) of this section,

the Administrator 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 212 of this title, the Administrator shall bring all actions under

section 217 of this title to restrain violations of this chapter.

(b) State and local agencies and employees

With the consent and cooperation of State agencies charged with the administration

of State labor laws, the Administrator and the Secretary of Labor may, for the

purpose of carrying out their respective functions and duties under this chapter,

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) Records

Every employer subject to any provision of this chapter or of any order issued under

this chapter 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

25
 
Sec. 211(c)
 

shall make such reports therefrom to the Administrator as he shall prescribe by

regulation or order as necessary or appropriate for the enforcement of the provisions

of this chapter or the regulations or orders thereunder. The employer of an employee

who performs substitute work described in section 207(p)(3) of this title may not be

required under this subsection to keep a record of the hours of the substitute work.

(d) Homework regulations

The Administrator 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 chapter, and all existing regulations or orders of the Administrator

relating to industrial homework are continued in full force and effect.

§ 212. Child labor provisions

(a) Restrictions on shipment of goods; prosecution; conviction

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 section, 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.

(b) Investigations and inspections

The Secretary of Labor or any of his authorized representatives, shall make all

investigations and inspections under section 211(a) of this title with respect to the

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

General, shall bring all actions under section 217 of this title 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 chapter relating to oppressive child labor.

(c) Oppressive child labor

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.

(d) Proof of age

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.

26
 
Sec. 213
 

§ 213. Exemptions

(a) Minimum wage and maximum hour requirements

The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of

this subsection) and section 207 of this title 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, 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. Pub.L. 101-157, § 3(s)(1), Nov. 17, 1989, 103 Stat. 939

(3) any employee employed by an establishment which is an amusement or

recreational establishment, organized camp, or religious or non-profit

educational conference center, 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 206 and 207 of this title 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 206 of this title, 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; or

(4) Repealed. Pub.L. 101-157, § 3(c)(1), Nov. 17, 1989, 103 Stat. 939

(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

27
 
Sec. 213(6)(A)
 

(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, 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; or

(7) any employee to the extent that such employee is exempted by

regulations, order, or certificate of the Secretary issued under section 214 of

this title; or

(8) any employee employed in connection with the publication of any weekly,

semiweekly, 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. Pub.L. 93-259, § 23(a)(1), Apr. 8, 1974, 88 Stat. 69

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

telephone company which has not more than seven hundred and fifty

stations; or

28
 
Sec. 213(a)(11)
 

(11) Repealed Pub.L. 93-259, § 10(a), Apr. 8, 1974, 88 Stat. 63

(12) any employee employed as a seaman on a vessel other than an

American vessel; or

(13), (14) Repealed Pub.L. 93-259, §§ 9(b)(1), 23(b)(1), Apr. 8, 1974, 88

Stat. 63, 69

(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) a criminal investigator who is paid availability pay under section 5545a

of Title 5; or

(17) 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 subparagraphs (A), (B), and

(C) the performance of which requires the same level of skills, and

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) Maximum hour requirements

The provisions of section 207 of this title shall not apply with respect to—

(1) any employee with respect to whom the Secretary of Transportation has

power to establish qualifications and maximum hours of service pursuant

to the provisions of section 31502 of Title 49; 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; or

29
 
Sec. 213(b)(3)
 

(3) any employee of a carrier by air subject to the provisions of title II of the

Railway Labor Act [45 U.S.C.A. § 181 et seq.]; or

(4) Repealed. Pub.L. 93-259, § 11(c), Apr. 8, 1974, 88 Stat. 64

(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. Pub.L. 93-259, § 21(b)(3), Apr. 8, 1974, 88 Stat. 68

(8) Repealed. Pub.L. 95-151, § 14(b), Nov. 1, 1977, 91 Stat. 1252

(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, 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; 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 207(a) of this title; 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 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; or

30
 
Sec. 213(b)(13)
 

(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 206(a)(1) of this title; 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; or

(15) any employee engaged in the processing of maple sap into sugar (other

than refined sugar) or syrup; or

(16) any employee engaged

(A) in the transportation and preparation for transportation of fruits or

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;

or

(17) any driver employed by an employer engaged in the business of

operating taxicabs; or

(18), (19) Repealed. Pub.L. 93-259, §§ 15(c), 16(b), Apr. 8, 1974, 88 Stat.

65

(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; or

(21) any employee who is employed in domestic service in a household and

who resides in such household; or

(22) Repealed. Pub.L. 95-151, § 5, Nov. 1, 1977, 91 Stat. 1249

(23) Repealed. Pub.L. 93-259, § 10(b)(3), Apr. 8, 1974, 88 Stat. 64

31
 
Sec. 213(b)(24)
 

(24) any employee who is employed with his spouse by a nonprofit

educational institution to serve as the parents of children—

(A) who are orphans or one of whose natural parents is deceased, or

(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), (26) Repealed. Pub.L. 95-151, §§ 6(a), 7(a), Nov. 1, 1977, 91 Stat.

1249, 1250

(27) any employee employed by an establishment which is a motion picture

theater; 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;

(29) 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) a criminal investigator who is paid availability pay under section 5545a

of Title 5.

(c) Child labor requirements

(1) Except as provided in paragraph (2) or (4), the provisions of section 212

of this title 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

32
 
Sec. 213(c)(1)(A)(ii)
 

(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 subsection (a)(6)(A) of this

section) required to be paid at the wage rate prescribed by

section 206(a)(5) of this title,

(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 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 212 of this title 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 212 of this title 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)

(A) An employer or group of employers may apply to the Secretary for

a waiver of the application of section 212 of this title 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 212 of this title

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 wellbeing;

(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;

33
 
Sec. 213(c)(4)(A)(iv)
 

(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)

(A) In the administration and enforcement of the child labor provisions

of this chapter, 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 Standards Institute’s

Standard ANSI Z245.5–1990 for scrap paper balers and

Standard ANSI Z245.2–1992 for paper box compactors;

or

34
 
Sec. 213(c)(5)(B)(i)(II)
 

(II) the scrap paper balers and paper box compactors

meet an applicable standard that is adopted by the

American National Standards Institute after August 6,

1996, 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 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).

(C)

(i) Employers shall prepare and submit to the Secretary

reports—

(I) on any injury to an employee under the age of 18

that requires medical treatment (other than first aid)

resulting from the employee's contact with a scrap paper

baler or paper box compactor during the loading,

operation, or unloading of the baler or compactor; and

(II) on any fatality of an employee under the age of 18

resulting from the employee's contact with a scrap paper

baler or paper box compactor during the loading,

operation, or unloading of the baler or compactor.

35
 
Sec. 213(c)(5)(C)(ii)
 

(ii) The reports described in clause (i) shall be used by the

Secretary to determine whether or not the implementation of

subparagraph (A) has had any effect on the safety of children.

(iii) The reports described in clause (i) shall provide—

(I) the name, telephone number, and address of the

employer and the address of the place of employment

where the incident occurred;

(II) the name, telephone number, and address of the

employee who suffered an injury or death as a result of

the incident;

(III) the date of the incident;

(IV) a description of the injury and a narrative

describing how the incident occurred; and

(V) the name of the manufacturer and the model

number of the scrap paper baler or paper box compactor

involved in the incident.

(iv) The reports described in clause (i) shall be submitted to

the Secretary promptly, but not later than 10 days after the

date on which an incident relating to an injury or death

occurred.

(v) The Secretary may not rely solely on the reports described

in clause (i) as the basis for making a determination that any of

the employers described in clause (i) has violated a provision of

section 212 of this title relating to oppressive child labor or a

regulation or order issued pursuant to section 212 of this title.

The Secretary shall, prior to making such a determination,

conduct an investigation and inspection in accordance with

section 212(b) of this title.

(vi) The reporting requirements of this subparagraph shall

expire 2 years after August 6, 1996.

(6) In the administration and enforcement of the child labor provisions of this

chapter, 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;

36
 
Sec. 213(c)(6)(C)
 

(C) the employee has successfully completed a State approved driver

education course;

(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, time-sensitive 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 one-third of an employee’s worktime in any workday and no more

than 20 percent of an employee’s worktime in any workweek.

(7)

(A)

(i) Subject to subparagraph (B), in the administration and

enforcement of the child labor provisions of this chapter, 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.

37
 
Sec. 213(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

saw dust.

(d) Delivery of newspapers and wreathmaking

The provisions of sections 206, 207 and 212 of this title 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) Maximum hour requirements and minimum wage employees

The provisions of section 207 of this title shall not apply with respect to employees

for whom the Secretary of Labor is authorized to establish minimum wage rates as

provided in section 206(a)(3) of this title, 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 207 of this title if he shall find, after a public hearing on the

matter, and taking into account the factors set forth in section 206(a)(3) of this title,

that economic conditions warrant such action.

(f) Employment in foreign countries and certain United States territories

The provisions of sections 206, 207, 211, and 212 of this title shall not apply with

respect to any employee whose services during the workweek are performed in a

38
 
Sec. 213(f)
 

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) [43 U.S.C.A. § 1331 et

seq.]; American Samoa; Guam; Wake Island; Eniwetok Atoll; Kwajalein Atoll; and

Johnston Island.

(g) Certain employment in retail or service establishments, agriculture

The exemption from section 206 of this title 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) Maximum hour requirement: fourteen workweek limitation

The provisions of section 207 of this title 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 compresswarehouse 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

establishment 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—

39
 
Sec. 213(h)(2)(A)
 

(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 fortyeight 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 207 of this title.

(i) Cotton ginning

The provisions of section 207 of this title 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) Processing of sugar beets, sugar beet molasses, or sugar cane

The provisions of section 207 of this title 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.

40
 
Sec. 214
 

§ 214. Employment under special certificates

(a) Learners, apprentices, messengers

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 206 of this title and subject to such limitations as to time, number,

proportion, and length of service as the Secretary shall prescribe.

(b) Students

(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

206 of this title 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) 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

chapter before the effective date of the Fair Labor Standards

Amendments of 1974—

(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 one-tenth of the total hours

of employment of all employees in such establishment,

41
 
Sec. 214(b)(1)(B)(i)(III)
 

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 twelve-month 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 one-tenth 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 206(a)(5) of this title

42
 
Sec. 214(b)(2)
 

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 206 of this title 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 full-time 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) If the issuance of a special certificate under paragraph (1) or (2)

for an employer will 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

43
 
Sec. 214(b)(4)(B)(ii)
 

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) 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) Handicapped workers

(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 206 of this

title,

(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

44
 
Sec. 214(c)(2)(B)
 

(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.

(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.

The administrative law judge shall conduct a hearing on the record in

accordance with section 554 of Title 5 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.

45
 
Sec. 214(c)(5)(E)
 

(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. An action seeking such review shall be brought

within thirty days of a final agency action described in subparagraph

(F).

(d) Employment by schools

The Secretary may by regulation or order provide that sections 206 and 207 of this

title 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.

§ 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;

46
 
Sec. 215(a)(2)
 

(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.

§ 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

47
 
Sec. 216(b)
 

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 therefore 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.

48
 
Sec. 216(d)
 

(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.A. § 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)

(1)

(A) Any person who violates the provisions of sections 212 or 213(c)

of this title, relating to child labor, or any regulation issued pursuant to

such sections, shall be subject to a civil penalty not to exceed—

(i) $11,000 for each employee who was the subject of such a

violation; or

(ii) $50,000 with regard to each such violation that causes the

death or serious injury of any employee under the age of 18

years, which penalty may be doubled where the violation is a

repeated or willful violation.

(B) For purposes of subparagraph (A), the term “serious injury”

means—

(i) permanent loss or substantial impairment of one of the

senses (sight, hearing, taste, smell, tactile sensation);

(ii) permanent loss or substantial impairment of the function of

a bodily member, organ, or mental faculty, including the loss of

all or part of an arm, leg, foot, hand or other body part; or

(iii) permanent paralysis or substantial impairment that causes

loss of movement or mobility of an arm, leg, foot, hand or

other body part.

(2) Any person who repeatedly or willfully violates section 206 or 207,

relating to wages, shall be subject to a civil penalty not to exceed $1,100 for

each such violation.

(3) 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—

49
 
Sec. 216(e)(3)(A)
 

(A) deducted from any sums owing by the United States to the

person charged;

(B) 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

(C) ordered by the court, in an action brought for a violation of section

215(a)(4) of this title or a repeated or willful violation of section

215(a)(2) of this title, to be paid to the Secretary.

(4) Any administrative determination by the Secretary of the amount of any

penalty under this subsection shall be final, unless within 15 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, and regulations to be

promulgated by the Secretary.

(5) Except for civil penalties collected for violations of section 212 of this

title, 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 provision of

section 9a of this title. Civil penalties collected for violations of section 212 of

this title shall be deposited in the general fund of the Treasury.

§ 216a. Repealed. Oct. 26, 1949, c. 736, § 16(f), 63 Stat.

920

§ 216b. Liability for overtime work performed prior to July

20, 1949

No employer shall be subject to any liability or punishment under this chapter (in any

action or proceeding commenced prior to or on or after January 24, 1950), 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 subsections (d)(6), (7), and (g) of

section 207 of this title been in effect at the time of such payment.

§ 217. Injunction proceedings

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 215 of

this title, including in the case of violations of section 215(a)(2) of this title the

restraint of any withholding of payment of minimum wages or overtime

compensation found by the court to be due to employees under this chapter (except

50
 
Sec. 217
 

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 255 of this title).

§ 218. Relation to other laws

(a) No provision of this chapter or of any order thereunder shall excuse

noncompliance with any Federal or State law or municipal ordinance establishing a

minimum wage higher than the minimum wage established under this chapter or a

maximum work week lower than the maximum workweek established under this

chapter, and no provision of this chapter 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 chapter. No

provision of this chapter shall justify any employer in reducing a wage paid by him

which is in excess of the applicable minimum wage under this chapter, or justify any

employer in increasing hours of employment maintained by him which are shorter

than the maximum hours applicable under this chapter.

(b) Notwithstanding any other provision of this chapter (other than section 213(f) of

this title) 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, or

(2) any employee employed in a nonappropriated fund instrumentality under

the jurisdiction of the Armed Forces,

shall have his basic compensation fixed or adjusted at a wage rate that is not less

than the appropriate wage rate provided for in section 206(a)(1) of this title (except

that the wage rate provided for in section 206(b) of this title 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 207(a)(1) of this title.

§ 218a. Automatic enrollment for employees of large

employers

In accordance with regulations promulgated by the Secretary, an employer to which

this chapter applies that has more than 200 full-time employees and that offers

employees enrollment in 1 or more health benefits plans shall automatically enroll

new full-time employees in one of the plans offered (subject to any waiting period

authorized by law) and to continue the enrollment of current employees in a health

benefits plan offered through the employer. Any automatic enrollment program shall

include adequate notice and the opportunity for an employee to opt out of any

coverage the individual or employee were automatically enrolled in. Nothing in this

section shall be construed to supersede any State law which establishes,

implements, or continues in effect any standard or requirement relating to employers

in connection with payroll except to the extent that such standard or requirement

prevents an employer from instituting the automatic enrollment program under this

section.

51
 
Sec. 218b
 

§ 218b. Notice to employees

(a) In general

In accordance with regulations promulgated by the Secretary, an employer to which

this chapter applies, shall provide to each employee at the time of hiring (or with

respect to current employees, not later than March 1, 2013), written notice—

(1) informing the employee of the existence of an Exchange, including a

description of the services provided by such Exchange, and the manner in

which the employee may contact the Exchange to request assistance;

(2) if the employer plan's share of the total allowed costs of benefits provided

under the plan is less than 60 percent of such costs, that the employee may

be eligible for a premium tax credit under section 36B of the Internal Revenue

Code of 1986 and a cost sharing reduction under section 18071 of Title 42 if

the employee purchases a qualified health plan through the Exchange; and

(3) if the employee purchases a qualified health plan through the Exchange,

and the employer does not offer a free choice voucher, the employee may

lose the employer contribution (if any) to any health benefits plan offered by

the employer and that all or a portion of such contribution may be excludable

from income for Federal income tax purposes.

(b) Effective date

Subsection (a) shall take effect with respect to employers in a State beginning on

March 1, 2013.

§ 218c. Protections for employees

(a) Prohibition

No employer shall discharge or in any manner discriminate against any employee

with respect to his or her compensation, terms, conditions, or other privileges of

employment because the employee (or an individual acting at the request of the

employee) has—

(1) received a credit under section 36B of the Internal Revenue Code of 1986

or a subsidy under section 18071 of Title 42;

(2) provided, caused to be provided, or is about to provide or cause to be

provided to the employer, the Federal Government, or the attorney

general of a State information relating to any violation of, or any act or

omission the employee reasonably believes to be a violation of, any

provision of this title (or an amendment made by this title);

(3) testified or is about to testify in a proceeding concerning such violation;

(4) assisted or participated, or is about to assist or participate, in such a

proceeding; or

52
 
Sec. 218c(a)(5)
 

(5) objected to, or refused to participate in, any activity, policy, practice, or

assigned task that the employee (or other such person) reasonably believed

to be in violation of any provision of this title (or amendment), or any order,

rule, regulation, standard, or ban under this title (or amendment).

(b) Complaint procedure

(1) In general

An employee who believes that he or she has been discharged or otherwise

discriminated against by any employer in violation of this section may seek

relief in accordance with the procedures, notifications, burdens of proof,

remedies, and statutes of limitation set forth in section 2087(b) of Title 15.

(2) No limitations on rights

Nothing in this section shall be deemed to diminish the rights, privileges, or

remedies of any employee under any Federal or State law or under any

collective bargaining agreement. The rights and remedies in this section may

not be waived by any agreement, policy, form, or condition of employment.

§ 219. Separability

If any provision of this chapter or the application of such provision to any person or

circumstance is held invalid, the remainder of this chapter and the application of

such provision to other persons or circumstances shall not be affected thereby

53
 
Pertinent Provisions Affecting the Fair Labor Standards Act from the PortalTo-Portal Act of 1947 (61 Stat. 84)
 

[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,1 and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled,

Part 1 Findings and Policy

Section 1

(a) The Congress finds that the Fair Labor Standards Act of 1938, as amended [29

U.S.C.A. § 201 et seq.], has been interpreted judicially in disregard of longestablished customs, practices, and contract 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;

1 The Fair Labor Standards Act of 1938, as amended, contains several references to the “Bacon-Davis Act.”
 

“This Act” was recodified to 40 U.S.C.A. §§ 3141-3144, 3146, and 3147, following its repeal by
 

Pub.L. 107-217, § 6(b), Aug. 21, 2002, 116 Stat. 1308.
 

54
 
(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 chapter 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 WalshHealey [41 U.S.C.A. § 35 et seq.] and Bacon-Davis [40 U.S.C.A. § 276a et seq.] 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 chapter shall apply to the Walsh-Healey Act and the Bacon-Davis Act.

(b) It is 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.

*****

55
 
Part III Future Claims

Sec. 4 Relief From Liability and Punishment Under the Fair Labor Standards

Act of 1938, the Walsh-Healey Act, and the Bacon-Davis Act For Failure to

Pay Minimum Wage or overtime compensation

(a) Activities not compensable

Except as provided in subsection (b) of this section, no employer shall be subject to

any liability or punishment under the Fair Labor Standards Act of 1938, as amended

[29 U.S.C.A. § 201 et seq.], the Walsh-Healey Act [41 U.S.C.A. § 35 et seq.], or the

Bacon-Davis Act [40 U.S.C.A. § 276a et seq.], 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 May 14, 1947–

(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 a 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.

(b) Compensability by contract or custom

Notwithstanding the provisions of subsection (a) of this section 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 collectivebargaining 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 collectivebargaining representative and his employer.

(c) Restriction on activities compensable under contract or custom

For the purposes of subsection (b) of this section, an activity shall be considered as

compensable under such contract provision or such custom or practice only when it

56
 
is engaged in during the portion of the day with respect to which it is so made

compensable.

(d) Determination of time employed with respect to activities

In the application of the minimum wage and overtime compensation provisions of

the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et seq.], of

the Walsh-Healey Act [41 U.S.C.A. § 35 et seq.], or of the Bacon-Davis Act [40

U.S.C.A. § 276a et seq.], 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

*****

§ 255. Statute of Limitations

Any action commenced on or after May 14, 1947, 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 [29 U.S.C.A. § 201 et

seq.], the Walsh-Healey Act [41 U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40

U.S.C.A. § 276a et seq.]­

(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 commended within three years after the cause of action accrued;

*****

(d) with respect to any cause of action brought under section 216(b) of this title

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.

§ 256. Determination of Commencement of Future Actions

In determining when an action is commenced for the purposes of section 255 of this

title, an action commenced on or after May 14, 1947 under the Fair Labor Standards

Act of 1938, as amended [29 U.S.C.A. § 201 et seq.], the Walsh-Healey Act [41

U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C.A. § 276a et seq.], shall be

considered to be commended 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

57
 
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.

*****

§ 259. Reliance in Future on Administrative Rulings, Etc.

(a) In any action or proceeding based on any act or omission on or after May 14,

1947, 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 [29 U.S.C.A. § 201 et seq.], the

Walsh-Healey Act [41 U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C.A. §

276a et seq.], 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 [29

U.S.C.A. § 201 et seq.] – the Administrator of the Wage and Hour Division of

the Department of Labor;

*****

§ 260. Liquidated Damages

In any action commenced prior to or on or after May 14, 1947 to recover unpaid

minimum wages, unpaid overtime compensation, or liquidated damages, under the

Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et seq.], 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 216 of such

title.

*****

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§ 262. Definitions

(a) When the terms “employer”, “employee”, and “wage” are used in this chapter in

relation to the Fair Labor Standards Act of 1938, as amended [29 U.S.C.A. § 201 et

seq.], they shall have the same meaning as when used in such Act of 1938.

*****

(e) As used in section 255 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.

59