[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR541.109]

[Page 188-189]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 541_DEFINING AND DELIMITING THE TERMS ``ANY EMPLOYEE EMPLOYED IN A 
 
                        Subpart B_Interpretations
 
Sec. 541.109  Emergencies.

    (a) Under certain occasional emergency conditions, work which is 
normally performed by nonexempt employees and is nonexempt in nature 
will be directly and closely related to the performance of the exempt 
functions of management and supervision and will therefore be exempt 
work. In effect, this means that a bona fide executive who performs work 
of a normally nonexempt nature on rare occasions because of the 
existence of a real emergency will not, because of the performance of 
such emergency work, lose the exemption. Bona fide executives include 
among their responsibilities the safety of the employees under their 
supervision, the preservation and protection of the merchandise, 
machinery or other property of the department or subdivision in their 
charge from damage due to unforeseen circumstances, and the prevention 
of widespread breakdown in production, sales, or service operations. 
Consequently, when conditions beyond control arise which threaten the 
safety of the employees, or a cessation of operations, or serious damage 
to the employer's property, any manual or other normally nonexempt work 
performed in an effort to prevent such results is considered exempt work 
and is not included in computing the percentage limitation on nonexempt 
work.

[[Page 189]]

    (b) The rule in paragraph (a) of this section is not applicable, 
however, to nonexempt work arising out of occurrences which are not 
beyond control or for which the employer can reasonably provide in the 
normal course of business.
    (c) A few illustrations may be helpful in distinguishing routine 
work performed as a result of real emergencies of the kind for which no 
provision can practicably be made by the employer in advance of their 
occurrence and routine work which is not in this category. It is obvious 
that a mine superintendent who pitches in after an explosion and digs 
out the men who are trapped in the mine is still a bona fide executive 
during that week. On the other hand, the manager of a cleaning 
establishment who personally performs the cleaning operations on 
expensive garments because he fears damage to the fabrics if he allows 
his subordinates to handle them is not performing ``emergency'' work of 
the kind which can be considered exempt. Nor is the manager of a 
department in a retail store performing exempt work when he personally 
waits on a special or impatient customer because he fears the loss of 
the sale or the customer's goodwill if he allows a salesperson to serve 
him. The performance of nonexempt work by executives during inventory-
taking, during other periods of heavy workload, or the handling of rush 
orders are the kinds of activities which the percentage tolerances are 
intended to cover. For example, pitching in on the production line in a 
canning plant during seasonal operations is not exempt ``emergency'' 
work even if the objective is to keep the food from spoiling. Similarly, 
pitching in behind the sales counter in a retail store during special 
sales or during Christmas or Easter or other peak sales periods is not 
``emergency'' work, even if the objective is to improve customer service 
and the store's sales record. Maintenance work is not emergency work 
even if performed at night or during weekends. Relieving subordinates 
during rest or vacation periods cannot be considered in the nature of 
``emergency'' work since the need for replacements can be anticipated. 
Whether replacing the subordinate at the workbench, or production line, 
or sales counter during the first day or partial day of an illness would 
be considered exempt emergency work would depend upon the circumstances 
in the particular case. Such factors as the size of the establishment 
and of the executive's department, the nature of the industry, the 
consequences that would flow from the failure to replace the ailing 
employee immediately, and the feasibility of filling the employee's 
place promptly would all have to be weighed.
    (d) All the regular cleaning up around machinery, even when 
necessary to prevent fire or explosion, is not ``emergency'' work. 
However, the removal by an executive of dirt or obstructions 
constituting a hazard to life or property need not be included in 
computing the percentage limitation if it is not reasonably practicable 
for anyone but the supervisor to perform the work and it is the kind of 
``emergency'' which has not been recurring. The occasional performance 
of repair work in case of a breakdown of machinery, or the collapse of a 
display rack, or damage to or exceptional disarray of merchandise caused 
by accident or a customer's carelessness may be considered exempt work 
if the breakdown is one which the employer cannot reasonably anticipate. 
However, recurring breakdowns or disarrays requiring frequent attention, 
such as that of an old belt or machine which breaks down repeatedly or 
merchandise displays constantly requiring re-sorting or straightening, 
are the kind for which provision could reasonably be made and repair of 
which must be considered as nonexempt.