[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: 29CFR790.9]

[Page 721-722]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 790_GENERAL STATEMENT AS TO THE EFFECT OF THE PORTAL-TO-PORTAL ACT 
OF 1947 ON THE FAIR LABOR STANDARDS ACT OF 1938--Table of Contents
 
Sec. 790.9  ``Compensable * * * by an express provision of a written or 
nonwritten contract.''

    (a) Where an employee engages in a ``preliminary'' or 
``postliminary'' activity of the kind described in section 4(a) of the 
Portal Act and this activity is ``compensable * * * by an express 
provision of a written or nonwritten contract'' applicable to the 
employment, section 4 does not operate to relieve the employer of 
liability or punishment under the Fair Labor Standards Act with respect 
to such activity, \68\ and does not relieve the employer of any 
obligation he would otherwise have under that Act to include time spent 
in such activity in computing hours worked. \69\
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    \68\ See Sec. 790.4.
    \69\ See Sec. Sec. 790.5 and 790.7.
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    (b) The word ``compensable,'' is used in subsections (b), (c), and 
(d) of section 4 without qualification. \70\ It is apparent from these 
provisions that ``compensable'' as used in the statute, means 
compensable in any amount. \71\
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    \70\ The word is also so used throughout section 2 of the Act which 
relates to past claims. See Sec. Sec. 790.28-790.25.
    \71\ Cf. Conference Report, pp. 9, 10, 12, 13; message of the 
President to the Congress on approval of the Portal-to-Portal Act, May 
14, 1947 (93 Cong. Rec. 5281).
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    (c) The phrase ``compensable by an express provision of a written or 
non- written contract'' in section 4(b) of the Portal Act offers no 
difficulty where a written contract states that compensation shall be 
paid for the specific activities in question, naming them in explicit 
terms or identifying them through any appropriate language. Such a 
provision clearly falls within

[[Page 722]]

the statutory description. \72\ The existence or nonexistence of an 
express provision making an activity compensable is more difficult to 
determine in the case of a nonwritten contract since there may well be 
conflicting recollections as to the exact terms of the agreement. The 
words ``compensable by an express provision'' indicate that both the 
intent of the parties to contract with respect to the activity in 
question and their intent to provide compensation for the employee's 
performance of the activity must satisfactorily appear from the express 
terms of the agreement.
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    \72\ See colloquy between Senators Donnell and Lodge, 93 Cong. Rec. 
2178; colloquies between Senators Donnell and Hawkes, 93 Cong. Rec. 
2179, 2181-2182.
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    (d) An activity of an employee is not ``compensable by * * * a 
written or nonwritten contract'' within the meaning of section 4(b) of 
the Portal Act unless the contract making the activity compensable is 
one ``between such employee, \72\ his agent, or collective-bargaining 
representative and his employer.'' \73\ Thus, a provision in a contract 
between a government agency and the employer, relating to compensation 
of the contractor's employees, would not in itself establish the 
compensability by ``contract'' of an activity, for purposes of section 
4.
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    \73\ The terms ``employee'' and ``employer'' have the same meaning 
as when used in the Fair Labor Standards Act. Portal-to-Portal Act, 
section 13(a).
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