[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: 29CFR790.14]

[Page 680-681]
 
                             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. 790.14  ``In conformity with.''

    (a) The ``good faith'' defense is not available to an employer 
unless the acts or omissions complained of were ``in conformity with'' 
the regulation, order, ruling, approval, interpretation, administrative 
practice or enforcement policy upon which he relied. \94\ This is true 
even though the employer erroneously believes he conformed with it and 
in good faith relied upon it; actual conformity is necessary.
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    \94\ Statement of Senator Cooper, 93 Cong. Rec. 4451; message of the 
President to Congress on approval of the Act, May 14, 1947, 93 Cong. 
Rec. 5281.
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    (b) An example of an employer not acting ``in conformity with'' an 
administrative regulation, order, ruling, approval, practice, or 
enforcement policy is a situation where an employer receives a letter 
from the Administrator of the Wage and Hour Division, stating that if 
certain specified circumstances and facts regarding the work performed

[[Page 681]]

by the employer's employees exist, the employees are, in his opinion, 
exempt from provisions of the Fair Labor Standards Act. One of these 
hypothetical circumstances upon which the opinion was based does not 
exist regarding these employees, but the employer, erroneously assuming 
that this circumstance is irrelevant, relies upon the Administrator's 
ruling and fails to compensate the employees in accordance with the Act. 
Since he did not act ``in conformity'' with that opinion, he has no 
defense under section 9 or 10 of the Portal Act.
    (c) As a further example of the requirement of conformity, reference 
is made to the illustration given in Sec. 790.13(b), where an employer, 
who had a contract with the X Federal Agency covering the period from 
January 1, 1947 to January 1, 1948, received an opinion from the agency 
that employees working on the contract were not covered by the Fair 
Labor Standards Act. Assume (1) that the X Agency's opinion was confined 
solely and exclusively to activities performed under the particular 
contract held by the employer with the agency and made no general 
statement regarding the status under the Act of the employer's employees 
while performing other work; and (2) that the employer, erroneously 
believing the reasoning used in the agency's opinion also applied to 
other and different work performed by his employees, did not compensate 
them for such different work, relying upon that opinion. As previously 
pointed out, the opinion from the X Agency, if relied on and conformed 
with in good faith by the employer, would form the basis of a ``good 
faith'' defense for the period prior to May 14, 1947, insofar as the 
work performed by the employees on this particular contract with that 
agency was concerned. The opinion would not, however, furnish the 
employer a defense regarding any other activities of a different nature 
performed by his employees, because it was not an opinion concerning 
such activities, and insofar as those activities are concerned, the 
employer could not act ``in conformity'' with it.