[Code of Federal Regulations]
[Title 29, Volume 3]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR788.13]

[Page 659-660]
 
                             TITLE 29--LABOR
 
         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
 
PART 788_FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN EIGHT 
EMPLOYEES ARE EMPLOYED--Table of Contents
 
Sec. 788.13  Counting the eight employees.

    The determination of the number of employees employed in the named 
operations is to be made on an occupational and a workweek basis. Thus 
the exemption will be available in one workweek when eight or less 
employees are employed in the exempt operations and not in another 
workweek

[[Page 660]]

when more than that number are so employed. For a discussion of the term 
``workweek'' see part 778 of this chapter. The exemption will not be 
defeated, however, if one or more of the eight employees so engaged is 
replaced during the workweek, for example, by reason of illness. But if 
additional employees are employed during the workweek in the named 
operations, even if they work on a different shift, the exemption would 
no longer be available if the total number exceed eight. Similarly, all 
of an employer's employees employed in any workweek in the named 
operations must be counted in the eight regardless of where the work is 
performed or how it is divided. Thus if an employer employs four 
employees in felling timber and preparing logs at one location and five 
at another location in those operations, the exemption would not be 
available. Similarly, if he employs six employees in such operations and 
three other employees in transportation work as discussed in Sec. 
788.11, the exemption could not apply. Under such circumstances he would 
be employing more than eight employees in the named operations. The fact 
that some of these employees may not be engaged in commerce or the 
production of goods for commerce or may be engaged in other exempt 
operations will not affect these conclusions (Woods Lumber Co. v. Tobin, 
199 F. 2d 455 (C.A. 5)). Except for replacements, therefore, all of an 
employer's employees employed in the named operations in a workweek must 
be counted, regardless of where they perform their work or in which of 
the named operations or combinations of such operations they are 
employed. The length of time an employee is employed in the named 
operations during a workweek is also immaterial for the purpose of 
applying the numerical limitation. Thus, even if an employee would not 
himself be exempt because he is engaged substantially in nonexempt work 
(see Sec. 788.17), nevertheless, if, as a regular part of his duties, 
he is also engaged in the operations named in the exemption, he must be 
counted in determining whether the eight employee limitation is 
satisfied.