[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: 29CFR790.1] [Page 666-667] 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. 790.1 Introductory statement. General Sec. 790.1 Introductory statement. 790.2 Interrelationship of the two Acts. Provisions Relating to Certain Activities Engaged in by Employees on or After May 14, 1947 790.3 Provisions of the statute. 790.4 Liability of employer; effect of contract, custom, or practice. 790.5 Effect of Portal-to-Portal Act on determination of hours worked. 790.6 Periods within the ``workday'' unaffected. 790.7 ``Preliminary'' and ``postliminary'' activities. 790.8 ``Principal'' activities. 790.9 ``Compensable * * * by an express provision of a written or nonwritten contract.'' 790.10 ``Compensable * * * by a custom or practice.'' 790.11 Contract, custom or practice in effect ``at the time of such activity.'' 790.12 ``Portion of the day.'' Defense of Good Faith Reliance on Administrative Regulations, etc. 790.13 General nature of defense. 790.14 ``In conformity with.'' 790.15 ``Good faith.'' 790.16 ``In reliance on.'' 790.17 ``Administrative regulation, order, ruling, approval, or interpretation.'' 790.18 ``Administrative practice or enforcement policy.'' 790.19 ``Agency of the United States.'' Restrictions and Limitations on Employee Suits 790.20 Right of employees to sue; restrictions on representative actions. 790.21 Time for bringing employee suits. 790.22 Discretion of court as to assessment of liquidated damages. Authority: 52 Stat. 1060, as amended; 29 U.S.C. 201 et seq. Source: 12 FR 7655, Nov. 18, 1947, unless otherwise noted. General (a) The Portal-to-Portal Act of 1947 was approved May 4, l947. \1\ It contains provisions which, in certain circumstances, affect the rights and liabilities of employees and employers with regard to alleged underpayments of minimum or overtime wages under the provisions of the Fair Labor Standards Act of 1938, \2\ the Walsh-Healey Public Contracts Act, and the Bacon-Davis Act. The Portal Act also establishes time limitations for the bringing of certain actions under these three Acts, limits the jurisdiction of the courts with respect to certain claims, and in other respects affects employee suits and proceedings under these Acts. --------------------------------------------------------------------------- \1\ An act to relieve employers from certain liabilities and punishments under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, and the Bacon-Davis Act, and for other purposes (61 Stat. 84; 29 U.S.C., Sup., 251 et seq.). \2\ 52 Stat. 1060, as amended; 29 U.S.C. 201 et seq. In the Fair Labor Standards Act, the Congress exercised its power over interstate commerce to establish basic standards with respect to minimum and overtime wages and to bar from interstate commerce goods in the production of which these standards were not observed. For the nature of liabilities under this Act, see footnote 17. For the sake of brevity, this Act is referred to in the following --------------------------------------------------------------------------- discussion as the Portal Act. (b) It is the purpose of this part to outline and explain the major provisions of the Portal Act as they affect the application to employers and employees of the provisions of the Fair Labor Standards Act. The effect of the Portal Act in relation to the Walsh-Healey Act and the Bacon-Davis Act is not within the scope of this part, and is not discussed herein. Many of the provisions of the Portal Act do not apply to claims or liabilities arising out of activities engaged in after the enactment of the Act. These provisions are not discussed at length in this part,\3\ [[Page 667]] because the primary purpose of this part is to indicate the effect of the Portal Act upon the future administration and enforcement of the Fair Labor Standards Act, with which the Administrator of the Wage and Hour Division is charged under the law. The discussion of the Portal Act in this part is therefore directed principally to those provisions that have to do with the application of the Fair Labor Standards Act on or after May 14, 1947. --------------------------------------------------------------------------- \3\ Sections 790.23 through 790.29 in the prior edition of this part 790 have been omitted in this revision because of their obsolescence in that they dealt with those sections of the Act concerning activities prior to May 14, 1947, the effective date of the Portal-to-Portal Act. --------------------------------------------------------------------------- (c) The correctness of an interpretation of the Portal Act, like the correctness of an interpretation of the Fair Labor Standards Act, can be determined finally and authoritatively only by the courts. It is necessary, however, for the Administrator to reach informed conclusions as to the meaning of the law in order to enable him to carry out his statutory duties of administration and enforcement. It would seem desirable also that he makes these conclusions known to persons affected by the law. \4\ Accordingly, as in the case of the interpretative bulletins previously issued on various provisions of the Fair Labor Standards Act, the interpretations set forth herein are intended to indicate the construction of the law which the Administration believes to be correct \5\ and which will guide him in the performance of his administrative duties under the Fair Labor Standards Act, unless and until he is directed otherwise by authoritative rulings of the courts or concludes, upon reexamination of an interpretation, that it is incorrect. As the Supreme Court has pointed out, such interpretations provide a practical guide to employers and employees as to how the office representing the public interest in \6\ enforcement of the law will seek to apply it. As has been the case in the past with respect to other interpretative bulletins, the Administrator will receive and consider statements suggesting change of any interpretation contained in this part. --------------------------------------------------------------------------- \4\ See Skidmore v. Swift & Co., 323 U.S. 134; Kirschbaum Co. v. Walling, 316 U.S. 517; Portal-to-Portal Act, sec. 10. \5\ The interpretations expressed herein are based on studies of the intent, purpose, and interrelationship of the Fair Labor Standards Act and the Portal Act as evidenced by their language and legislative history, as well as on decisions of the courts establishing legal principles believed to be applicable in interpreting the two Acts. These interpretations have been adopted by the Administrator after due consideration of relevant knowledge and experience gained in the administration of the Fair Labor Standards Act of 1938 and after consultation with the Solicitor of Labor. \6\ Skidmore v. Swift & Co., 323 U.S. 134. See also Roland Electrical Co. v. Walling, 326 U.S. 657; United States v. American Trucking Assn., 310 U.S. 534; Overnight Motor Transp. Co. v. Missel, 316 U.S. 572. [12 FR 7655, Nov. 18, 1947, as amended at 35 FR 7383, May 12, 1970]