Evening star., 1947-11-23
Labor Department Issues
Analysis Of Portal Act
Legal Staff Provides Interpretation
Of Law Governing Disputed Pay
By Gerard d. Reilly

VI Law Governing disputed ray
By Gerard d. Reilly
Approximately year ago the term portal
to-portal' became a household word. It rep
resented an aggregation of employe suits under
the Fair Labor Standards Act Of 1888 in which
workers sought to recover from employers bill
lions of dollar in back wages and double dam
ages. These suits, involving such astronomical
sums, were all based upon a single decision of
the Supreme Court (Anderson VS.. Mount
Clemens Pottery CO.., decided in June, 1946.
In this case the court applied theories of work
which it had developed in earlier cases to hold
that iron and coal miners were at work when
travelling underground. The court held In the
Mount Clemens case that employees in a modern
industrial plant were "at work. and entitled
to be paid in accordance with the Fair Labor
Standards Act when they were walking be-
tween their time-clock and work benches,
Based upon the theory that this decision had
created new concept of employment which
disregarded industry custom and practice, suits
were filed for activities and inactivities such as
sleeping time, eating time and clothes chang
ing time Suggestions were made frequently,
and seriously, thai no employer was free from
liability under the Fair Labor Standards Act
unless he had been paying his employees as If
tney naQ worked around the CLOCK.
Thus, for the first time since 1888 when the
Fair Labor Standards Act became effective,
Congress in le46 became seriously concerned
with the correction of an inequity which
threatened to bankrupt many employers and
which had developed under law having the
simple purpose of placing floor under wages
and ceiling over hours.
After extended hearings by committees of
both houses and several days of floor debates,
Congress passed bill which became the
"Portal-to-Portal Act of 1947' when it was
signed by the President on May ID, 1947
This Act had the following objectives: Q To
abolish all accrued portal-type claims and limit
future ones; (2) to provide employers with de-
lenses from liabilities or punishments If they
attempted to comply with the law in good
faith; 60 to permit settlement Of accrued
claims; a. to empower the courts to use their
discretion in awarding liquidated damages, and
(5> to Ak a two-year statute of limitations on
rights" accruing under the Fair Labor Stand
ards Act and two other Federal laws not
pertinent to this discussion.
Between May IA, 1947, the effective date Of
the Portal Act, and November 1s, 1947, the
legal staff of the Labor Department was silent
concerning the effect of the Portal Act On this
latter date a detailed interpretative bulletin
was issued analyzing the act. The delay in
issuing the bulletin caused considerable con-
Germ in view of the weight normally given by
the courts to any administrative pronounce
ment plus the weight specifically attached to
the administrators rulings under the good
faith" provisions OF the Portal Act. During the
intervening period between May IA and Novem-
ber 18 employers and employees alike have been
compelled to make their own best guess as
to how the Portal Act might affect their re-
spective obligations and rights. If an en-
ployer has guessed wrong, he may have con-
tinued to accrue liabilities which otherwise
would not have been the case
Despite the "lateness" of the bulletin it will
be welcomed by many employers as providing
some authoritative rules whereby they can
schedule their operations with safety. Although
the bulletin will doubtless be disappointment
to some employers, it will be accepted by others
as providing general and specific standards
and acquaint them with the administrators
version of the rules of the game"
The underlying theme of the bulletin seems
to be that the Portal Act is secondary to the
Fair Labor Standards Act and should there
FORE be given limited application This may
be illustrated by considering the statutory
contained in the bulletin.
The Portal Act provides that on and after
its effective date an employe is not engaged
in compensate work under the Fair Labor
Standards Act when walking or otherwise
travelling to or from the place where he
engages in his principal activity or activities;
or when performing other activities such as
changing clothes before after his principal
activities on any work day, unless the walking
and other preliminary" and "postliminary"
activities are compensate by contract, custom
or practice.
Even though the law seemingly provides q
general exception for preliminary" or post
liminary" activities, the administrators bulle-
tin states in effect that an employe travelling
to work must be paid for the travel time II
he is riding in a vehicle along with heavy
equipment to be used at his job site. It also
suggests that many types Of clothes-changing
activities must be treated as being compensable
There is much to be said for the adninis-
traitors position. In each Interpretation he
has recited facts which appear to justify the
views adopted. But whether these interpreta-
tons will later be used to narrow materially
the scope and application OF the Portal Act
remains to be seen. II they are 10 used
much OF the protectlon sougnt 10 De proVloeo
by Congress would be wiped out.
One of the most difficult problems confront
ing Congress in connection with the Portal Act
was the drafting of appropriate provisions to
protect employers from liabilities under the
wage and hour law If they had made every
reasonable attempt to comply with the law.
After considerable study, Congress decided to
relieve employers from any liabilities or punish
ments if their operations were conducted in re.
lance upon and In conformity with certain
administrative rulings and enforcement pol
icies. For any liabilities that may have accrued
before the effective date Of the Portal Act, that
act provided defenses for employers who relied
upon rulings or enforcement policies of any
agency Of the United States. For actions which
might accrue after May H. the act provided
that an employer would have a valid defense