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FOREWORD

This material provides a concise legislative history of the provisions of the Fair Labor Standards Act and outlines the changes in these provisions proposed by S. 1861 and Amendment No. 1204 (the Dominick-Taft substitute). Also included are a wide range of statistical data and summaries of past Labor Department minimum wage publications.

It is hoped that this material will prove useful in the consideration of the Fair Labor Standards Act amendments currently before Congress.

HARRISON A. WILLIAMS, Jr.,
Chairman, Senate Committee on

Labor and Public Welfare.

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FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED

(29 U.S.C. 201, et seq.) (Revised text showing in bold face type new or amended language provided by the Fair Labor Standards Amend

ments of 1961, as enacted May 5, 1961 (P.L. 87–30, 75 Stat. 65), and showing in italics new or amended language provided by the Fair Labor Standards Amendments of 1966, as enacted September 23, 1966 (P.L. 89-601, 80 Stat. 830)).

AN ACT

To provide for the establishment of fair labor standards in employments in and affecting interstate

commerce, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress

assembled, That this Act may be cited as the “Fair Labor Standards Act of 1938." Finding and Declaration of Policy

as practicable to eliminate the conditions above

referred to in such industries without substanSEC. 2. (a) The Congress hereby finds that the existence, in industries engaged in commerce or in

tially curtailing employments or earning power. the production of goods for commerce, of labor

Definitions conditions detrimental to the maintenance of the minimum standard of living necessary for health,

Sec. 3. As used in this Actefficiency, and general well-being of workers (1) (a) “Person” means an individual, partnership, causes commerce and the channels and instrumen- association, corporation, business trust, legal reptalities of commerce to be used to spread and per

resentative, or any organized group of persons. petuate such labor conditions among the workers (b) “Commerce" means trade, commerce, transof the several States; (2) burdens commerce and portation, transmission, or communication among the free flow of goods in commerce; (3) constitutes the several States or between any State and any an unfair method of competition in commerce; place outside thereof.3 (4) leads to labor disputes burdening and ob- (c) “State” means any State of the United structing commerce and the free flow of goods in Statés or the District of Columbia or any Terricommerce; and (5) interferes with the orderly

tory or possession of the United States. and fair marketing of goods in commerce.

(d). “Employer” includes any person acting (b) It is hereby declared to be the policy of this

directly or indirectly in the interest of an employer Act, through the exercise by Congress of its power

in relation to an employee but shall not include to regulate commerce among the several States

the United States or any State or political suband with foreign nations, to correct and as rapidly division of a State (except with respect to employ;

ees of a State or a political subdivision thereof, 152 Stat. 1060, as amended by the Act of August 9, 1939 (53 Stat. 1266) ; by section 404 of Reorganization Plan No. II of 1939 employed (1) in a hospital, institution, or school (53 Stat. 1436) by sections 3(c)-3(f) of the Act of June 26,

referred to in the last sentence of subsection (r) 1940.454 Stat. 615), by the Act of October 29, 1941, (55 Stat. the Portal-toPortal Act of 1947 (61 Stat. 84); by the Act of July )2 (60 . ) of this section, or (2) in the operation of a railway 20. 1919 (63 Stat. 446), by the Fair Labor Standards Amend

or carrier referred to in such sentence), or any laments of 1919 (63. Stat. 910); by Reorganization Plan No. 6 of bor organization (other than when acting as an 1950 (84 Stat. 1263); by the Fair Labor Standards Amendments of 1955 (69 Stat, 711); by the American Samoa Labor Standards employer), or anyone acting in the capacity of Amendments of 1956 (70 Stat. 1118); by the Act of August 30, 1957 (71 Stat. 514) by the Act of August 25, 1958 (72 Stat.

officer or agent of such labor organization. 844); by section 22 of the Act of August 28, 1958 (72 Stat. 948); by the Act of July 12, 1960 (74 Stat. 417); by the Fair Labor (e) “Employee" includes any individual emStandards Amendments of 1961 (75 Stat. 65); by the Equal Pay Act of 1963 (77 Stat. 56): and by the Fair Labor Standards

ployed by an employer, except that such term shall Amendments of 1968 (80 Stat. 830); by the Department of Trans- not, for the purposes of section 3 (u) includeportation Act, 80 Stat. 931 ; and by Public Law 90-83, 81 Stat. 222. The original text of the Fair Labor Standards Act of 1938

(1) any individual employed by an emas set forth in 52 Stat. 1060 has been revised in this publication ployer engaged in agriculture if such individto reflect the changes effected by the amendments listed in this footnote, which may be found in official text at the cited pages of

wal is the parent, spouse, child, or other memthe Statutes at Large. Added or amended language as enacted by the Fair Labor Standardy Amendments of 1961 is shown in bold

ber of the employer's immediate family, or face type. Added or amended language as enacted by the Fair Labor Standards Amendments of 1966 is shown in italics. The footnotes in this revision show where prior changes have been made and refer to the specific amendments relied upon so that a

2 As amended by section 2 of the Fair Labor Standards Amendcomparison may be made with the official text. This revised text has been prepared in the Office of the Solicitor,

3 As amended by section 3(a) of the Fair Labor Standards U.S. Department of Labor.

Amendments of 1949.

ments of 1949.

U.S. DEPARTMENT OF LABOR-Publication 1318—Printed February 1971
Workplace Standards Administration
Wage and Hour Division

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(2) any individual who is employed by an employer engaged in agriculture if such individual (A) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (B) commutes daily from his permanent residence to the farm on which he is 80 employed, and (C) has been employed in agriculture less than thirteen weeks during the preceding calendar year.

(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 15(g) of the Agricultural Marketing Act, as amended), 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 branch thereof, or group of industries, in which individuals are gainfully employed.

(i) “Goods” means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.

(j) “Produced” means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.'

(k) “Sale” or “sell” includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.

(1) “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 Secre tary 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 6 shall find and by order declare to be particularly hazardous for the employment of children be. tween such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor' certifying that such person is above the oppressive child labor age. The Secretary of Labor & shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labordetermines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being.

(m) “Wage” paid to any employee includes the reasonable cost, as determined by the Secretary of Labor,1° to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees: Provided, That the cost of board, lodging, or other facilities shall not be included as a part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective-bargaining agreement applicable to the particular employee: Provided further, that the Secretary is authorized to determine the fair value of such board, lodging, or other facilities for defined classes of employees and in defined areas, based on average cost to the employer or to groups of employers similarly situated, or average value to groups of employees, or other appropriate measures of fair value. Such evaluations, where applicable and pertinent, shall be used in lieu of actual measure of cost

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

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in determining the wage paid to any employee. In determining the wage of a tipped employee, the amount paid such employee by his employer shall be deemed to be increased on account of tips by an amount determined by the employer, but not by an amount in excess of 50 per centum of the applicable minimum wage rate, except that in the case of an employee who (either himself or acting through his representative) shows to the satisfaction of the Secretary that the actual amount of tips received by him was less than the amount determined by the employer as the amount by which the wage paid him was deemed to be increased under this sentence, the amount paid such employee by his employer shall be deemed to have been increased by such lesser amount.

(n) "Resale" shall not include the sale of goods to bé 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."

(0) Hours worked.-In determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. 1a

(p) “American vessel” includes any vessel which is documented or numbered under the laws of the United States.

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

(r) “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: Provided, That, 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, (1) that it will sell, or sell only, certain goods specified by a particular manufacturer, distributor, or advertiser, or (2) that it will join with other such establishments in the same industry for the purpose of collective purchas

ing, or (3) 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. For purposes of this subsection, the activities performed by any person or persons

(1) 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, an 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

(2) 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 publio or private or operated for

profit or not for profit), shall be deemed to be activities performed for a business purpose.

(8) "Enterprise engaged in commerce or in the production of goods for commerce" means an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person, and which

(1) during the period February 1, 1967, through January 31, 1969, is an enterprise whose annual gro88 volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated) or is a gasoline service establishment whose annual gross volume of sales is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated), and beginning February 1, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated);

(2) is engaged in laundering, cleaning, or repairing clothing or fabrics ;

(3) is engaged in the business of construction or reconstruction, or both; or

(4) is engaged in 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, an elementary or secondary school, or an institution of higher

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11 13 Section 3(d) of the Fair Labor Standards Amendments of 1949. (Original language of section 3(n) restored by sec. 215, Fair Labor Standards amendments of 1966.)

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