[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: 29CFR776.2]

[Page 365-366]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 776_INTERPRETATIVE BULLETIN ON THE GENERAL COVERAGE OF THE WAGE AND 
HOURS PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938--Table of Contents
 
                            Subpart A_General
 
Sec. 776.2  Employee basis of coverage.

    (a) The coverage of the Act's wage and hours provisions as described 
in sections 6 and 7 does not deal in a blanket way with industries as a 
whole. Thus, in section 6, it is provided that every employer shall pay 
the statutory

[[Page 366]]

minimum wage to ``each of his employees who is engaged in commerce or in 
the production of goods for commerce.'' It thus becomes primarily an 
individual matter as to the nature of the employment of the particular 
employee. Some employers in a given industry may have no employees 
covered by the Act; other employers in the industry may have some 
employees covered by the Act, and not others; still other employers in 
the industry may have all their employees within the Act's coverage. If, 
after considering all relevant factors, employees are found to be 
engaged in covered work, their employer cannot avoid his obligations to 
them under the Act on the ground that he is not ``engaged in commerce or 
in the production of goods for commerce.'' To the extent that his 
employees are so engaged, he is himself so engaged. \9\
---------------------------------------------------------------------------

    \9\ Kirschbaum v. Walling, 316 U.S. 517. See also Walling v. 
Jacksonville Paper Co., 317 U.S. 564; McLeod v. Threlkeld, 319 U.S. 491; 
Mabee v. White Plains Pub. Co., 327 U.S. 178.
---------------------------------------------------------------------------

    (b) In determining whether an individual employee is within the 
coverage of the wage and hours provisions, however, the relationship of 
an employer's business to commerce or to the production of goods for 
commerce may sometimes be an important indication of the character of 
the employee's work. \10\ It is apparent, too, from the 1949 amendment 
to the definition of ``produced'' and its legislative history that an 
examination of the character of the employer's business will in some 
borderline situations be necessary in determining whether the employees' 
occupation bears the requisite close relationship to production for 
commerce. \11\
---------------------------------------------------------------------------

    \10\ Borden Co. v. Borella, 325 U.S. 679; 10 E. 40th St. Bldg. Co. 
v. Callus, 325 U.S. 578; Armour & Co. v. Wantock, 323 U.S. 126; Donovan 
v. Shell Oil Co., 168 F. 2d 229 (C.A. 4); Hertz Driveurself Stations v. 
United States, 150 F. 2d 923 (C.A. 8); Horton v. Wilson & Co., 223 N.C. 
71, 25 S.E. 2d 437.
    \11\ H. Mgrs. St., 1949, pp. 14, 15; Sen. St. 1949 Cong. Rec. 15372.
---------------------------------------------------------------------------