The fair labor standards act of 1938, as amended




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THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED

(29 U.S.C. 201, et seq.)

To provide for the establishment of fair labor standards in

employments in and affecting interstate commerce, and

for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That this Act may be cited as the Fair Labor Standards

Act of 1938.lo

Finding and Declaration of Policy

SEC. 2. (a) The Congress hereby finds that the exis-

tence, in industries engaged in commerce or in the pro-

duction of goods for commerce, of labor conditions detri-

mental to the maintenance of the minimum standard of

living necessary for health, efficiency, and general well-

being of workers (1) causes commerce and the channels

and instrumentalities of commerce to be used to spread

and perpetuate such labor conditions among the workers

of the several States; (2) burdens commerce and the free

flow of goods in commerce; (3) constitutes an unfair method

of competition in commerce; (4) leads to labor disputes

burdening and obstructing commerce and the free flow

of goods in commerce; and (5) interferes with the orderly

and fair marketing of goods in commerce. The Congress

further finds that the employment of persons in domes-

tic service in households affects commerce.

(b) It is hereby declared to be the policy of this Act,

through the exercise by Congress of its power to regulate

commerce among the several States and with foreign na-

tions, to correct and as rapidly as practicable to eliminate

the conditions above referred to in such industries without

substantially curtailing employment or earning power. 2

Definitions

SEC. 3. As used in this Act

(a) Person means an individual, partnership, associa-

tion, corporation, business trust, legal representative, or

any organized group of persons.

(b) Commerce means trade, commerce, transporta-

tion, transmission, or communication among the several

States or between any State and any place outside thereof. 3

© State means any State of the United States or the

District of Columbia or any Territory or possession of the

United States.

(d) Employer includes any person acting directly or

indirectly in the interest of an employer in relation to an

employee and includes a public agency, 4 but does not

include any labor organization (other than when acting as

an employer) or anyone acting in the capacity of officer or

Agent of such labor organization.

(e) (1) Except as provided in paragraphs (2), (3),



And (4), the term employee. means any individual em-

ployed by an employer.

(2) In the case of an individual employed by a

public agency, such term means

(A) any individual employed by the Govern-

ment of the United States Š

(i) as a civilian in the military de-

partments (as defined in section 102 of title

5, United States Code),

(ii) in any executive agency (as de-

fined in section 105 of such title),

(iii) in any unit of the legislative or

judicial branch of the Government which has

positions in the competitive service,

(iv) in a nonappropriated fund in-

strumentality under the jurisdiction of the

Armed Forces, or

(v) in the Library of Congress;

(B) any individual employed by the United

States Postal Service or the Postal Rate Commis-

sion; and

(C) any individual employed by a State,

political subdivision of a State, or an interstate

governmental agency, other than such an indi-

vidual -

(i) who is not subject to the civil ser-

vice laws of the State, political subdivision,

or agency which employs him; and

(ii) who

(I) holds a public elective office

of that State, political subdivision, or

agency,


(II) is selected by the holder of

such an office to be a member of his per-

sonal staff,

2 As amended by section 2 of the Fair Labor Standards Amendments of 1949.

3 As amended by section 3(a) of the Fair Labor Standards Amendments of 1949.

4 Public agencies were specifically excluded from the Act’s coverage until the Fair

Labor Standards Amendments of 1966, when Congress extended coverage to

employees of a State or a political subdivision thereof, employed (1) in a hospital,

institution, or school referred to in the last sentence of subsection (r) of this section,

or (2) in the operation of a railway or carrier referred to in such sentence * * *...


(III) is appointed by such an of-

fice holder to serve on a policymaking

level,

(IV) is an immediate adviser to



such an officeholder with respect to the

constitutional or legal powers of his of-

fice, or

(V) is an employee in the legislative

branch or legislative body of that State, political subdivision, or agency

and is not employed by the legislative

library of such State, political subdivision,

or agency.

(3) For purposes of subsection (u), such term does

not include any individual employed by an employer

engaged in agriculture if such individual is the par-

ent, spouse, child, or other member of the employer

immediate family. 6

(4)7 (A) The term “employee” does not include

any individual who volunteers to perform services

for a public agency which is a State, a

political subdivision of a State, or an interstate

government agency, if —

(i) the individual receives no compensation

or is paid expenses, reasonable

benefits, or a nominal fee to perform the

services for which the individual volunteered;

and

(ii) such services are not the same



type of services which the individual is

employed to perform for such public

agency.

(B) An employee of a public agency which



is a State, political subdivision of a State, or an

interstate governmental agency may volunteer

to perform services for any other State, political

subdivision, or interstate governmental

agency, including a State, political subdivision

or agency with which the employing State, political

subdivision, or agency has a mutual aid

agreement.

(f) Agriculture includes farming in all its branches and

among other things includes the cultivation and tillage of

the soil, dairying, the production, cultivation, growing, and

harvesting of any agricultural or horticultural commodi-

ties (including commodities defined as agricultural com-

modities in section 15(g) of the Agricultural Marketing Act,

as amended), the raising of livestock, bees, furbearing ani-

mals, or poultry, and any practices (including any forestry

or lumbering operations) performed by a farmer or on a

farm as an incident to or in conjunction with such farming

operations, including preparation for market, delivery to

storage or to market or to carriers for transportation to

market.

(g) Employ includes to suffer or permit to work.



(h) Industry. means a trade, business, industry, or

other activity, or branch or group thereof, in which indi-

viduals are gainfully employed.

(i) Goods, means goods (including ships and marine

equipment), wares, products, commodities, merchandise,

or articles or subjects of commerce of any character, or any

part or ingredient thereof, but does not include goods after

their delivery into the actual physical possession of the ul-

timate consumer thereof other than a producer, manufac-

turer, or processor thereof.

(j) Produced means produced, manufactured, mined,

handled, or in any other manner worked on in any State;

and for the purposes of this Act an employee shall be

deemed to have been engaged in the production of goods if

such employee was employed in producing, manufactur-

ing, mining, handling, transporting, or in any other man-

ner working on such goods, or in any closely related pro-

cess or occupation directly essential to the production

thereof, in any State. 8

(k) Sale or sell includes any sale, exchange, contract

to sell, consignment for sale, shipment for sale, or other

disposition.

(l) Oppressive child labor means a condition of em-

ployment under which (1) any employee under the age of

sixteen years is employed by an employer (other than a

parent or a person standing in place of a parent employing

his own child or a child in his custody under the age of six-

teen years in an occupation other than manufacturing or

mining or an occupation found by the Secretary of Labor

to be particularly hazardous for the employment of chil-

dren between the ages of sixteen and eighteen years or

detrimental to their health or well-being) in any occupa-

tion, 9 or (2) any employee between the ages of sixteen and

eighteen years is employed by an employer in any occupa-

tion which the Secretary of Labor 10 shall find and by order

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5 As added by section 5 of the Fair Labor Standards Amendments of 1985, effec-

tive April 15, 1986.


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