§ 776.23 Employment in the construction industry. ( a ) *In general.* The same principles for determining coverage under the Fair Labor Standards Act generally apply to employees in the building and construction industry. As in other situations, it is the employee's activities rather than the employer's business which is the important consideration, and it is immaterial if the employer is an independent contractor who performs the construction work for or on behalf of a firm which is engaged in interstate commerce or in the production of goods for such commerce.[8]
( b ) *On both covered and non-covered work.* If the employee is engaged in both covered and non-covered work during the workweek he is entitled to the benefits of the Act for the entire week regardless of the amount of covered activities which are involved. The covered activities must, however, be regular or recurring rather than isolated, sporadic or occasional.[9]
( c ) *On covered construction projects.* All employees who are employed in connection with construction work which is closely or intimately related to the functioning of existing instrumentalities and channels of interstate commerce or facilities for the production of goods for such commerce are within the scope of the Act. Closely or intimately related construction work includes the maintenance, repair, reconstruction, redesigning, improvement, replacement, enlargement or extension of a covered facility.[10] If the construction project is subject to the Act, all employees who participate in the integrated effort are covered, including not only those who are engaged in work at the site of the construction such as mechanics, laborers, handymen, truckdrivers, watchmen, guards, timekeepers, inspectors, checkers, surveyors, payroll workers, and repair men, but also office, clerical, bookkeeping, auditing, promotional, drafting, engineering, custodial and stock room employees.[11]
( d ) *On non-covered construction projects.* ( 1 ) A construction project maybe purely local and, therefore, not covered, but some individual employees may nonetheless be covered on independent ground by reason of their interstate activities. Under the principle that coverage depends upon the particular activities of the employee and not on the nature of the business of the employer, individual employees engaged in interstate activities are covered even though their activities may be performed in connection with a non-covered construction project. Thus, the Act is applicable to employees who are regularly engaged in ordering or procuring materials and equipment from outside the State or receiving, unloading, checking, watching or guarding such goods while they are still in transit. For example, laborers on a non-covered construction project who regularly unload materials and equipment from vehicles or railroad cars which are transporting such articles from other States are performing covered work.[12]
( 2 ) Similarly, employees who regularly use instrumentalities of commerce, such as the telephone, telegraph and mails for interstate communication are within the scope of the Act, as are employees who are regularly engaged in preparing, handling, or otherwise working on goods which will be sent to other States. This includes the preparation of plans, orders, estimates, accounts, reports and letters for interstate transmittal.
Footnotes -
776.23
[8] *Mitchell* v. *Joyce Agency,* 348 U.S. 945, affirming 110 F. Supp. 918; *Fleming* v. *Sondeck,* 132 F. (2d) 77 (C.A. 5), certiorari denied 318 U.S. 772; *Kirschbaum* v. *Walling,* ante; *Walling* v. *McCrady Construction Co.,* 156 F. (2d) 932. certiorari denied 329 U.S. 785; *Mitchell* v. *Brown Engineering Co.,* 224 F. (2d) 359 (C.A. 8), certiorari denied 350 U.S. 875; *Chambers Construction Co. and L. H. Chambers* v. *Mitchell,* decided June 5, 1965 (C.A. 8).
[9] See General Coverage Bulletin, §§ 776.2 and 776.4
[10] *Walling* v. *McCrady Const. Co.,* 156 F. (2d) 932, certiorari denied 329 U.S. 785; *Chambers Construction Co. and L. H. Chambers* v. *Mitchell,* decided June 5, 1956 (C.A. 8); *Tobin* v. *Pennington-Winter Const. Co.* ante; *Mitchell* v. *Vollmer & Co.,* ante.
[11] *Mitchell* v. *Brown Engineering Co.,* ante; *Chambers Construction Co. and L. H. Chambers* v. *Mitchell,* ante; *Ritch* v. *Puget Sound Bridge & Dredging Co.,* 156 F. (2d) 334 (C.A. 9).
[12] *Clyde* v. *Broderick,* 144 F. (2d) 348 (C.A. 10); *Durnil* v. *J. E. Dunn Construction Co.* 186 F (2d) 27 (C.A. 8), *Donahue* v. *George A. Fuller Co.,* 104 F. Supp. 145; Cf. *Mitchell* v. *Royal Baking Co.,* 219 F. (2d) 532 (C.A. 5).