The fair labor standards act of 1938, as amended




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62 Redesignated as paragraph (7) of section 7 (o) by the Court Reporter Fair


Labor Amendments of 1995.

63 As added by section 3 of the Fair Labor Standards Amendments of 1985, effec-


tive April 15, 1986.

other individual who is employed by such agency

in the same capacity, the hours such employee

worked as a substitute shall be excluded by the pub-lic

agency in the calculation of the hours for which

the employee is entitled to overtime compensation

under this section.

(q)64 Any employer may employ any employee for a

period or periods of not more than 10 hours in the

aggregate in any workweek in excess of the maximum

workweek specified in subsection (a) without paying

the compensation for overtime employment

pre-scribed in such subsection, if during such period or

periods the employee is receiving remedial education

that is —

(1) provided to employees who lack a high

school diploma or educational attainment at the

eighth grade level;

(2) designed to provide reading and other

ba-sic skills at an eighth grade level or below; and

(3) does not include job specific training.
Wage Orders in American Samoa

SEC. 8 65 (a) The policy of this Act with respect to in-

dustries or enterprises in American Samoa engaged in

commerce or in the production of goods for commerce is to

reach as rapidly as is economically feasible without sub-

stantially curtailing employment the objective of the mini-

mum wage rate which would apply in each such indus-

try under paragraph (1) or (5) of section 6(a) but for

section 6(c).

The Secretary of Labor 66 shall from time to time con-

vene an industry committee or committees, appointed pur-

suant to section 5, and any such industry committee shall

from time to time recommend the minimum rate or rates

of wages to be paid under section 6 by employers in

American Samoa engaged in commerce or in the production of

goods for commerce or in any enterprise engaged in com-

merce or in the production of goods for commerce in

any such industry or classification therein, and who but



for section 6 (a)(3) would be subject to the minimum

wage requirements of section 6 (a)(1). Minimum rates

of wages established in accordance with this section which

are not equal to the otherwise applicable minimum wage

rate in effect under paragraph (1) or (5) or section 6(a)

shall be reviewed by such a committee once during each

biennial period, beginning with the biennial period com-

mencing July 1, 1958, except that the Secretary, 67 in his

discretion, may order an additional review during any such

biennial period. 68

(b) Upon the convening of any such industry commit-

tee, the Secretary 69 shall refer to it the question of the mini-

mum wage rate or rates to be fixed for such industry. The

industry committee shall investigate conditions in the in-

dustry and the committee, or any authorized subcommit-

tee thereof, shall after due notice hear such witnesses and

receive such evidence as may be necessary or appropriate

to enable the committee to perform its duties and func-

tions under this Act. 70 The committee shall recommend to

the Secretary 71 the highest minimum wage rates for the

industry which it determines, having due regard to eco-

nomic and competitive conditions, will not substantially

curtail employment in the industry, and will not give any

industry in American Samoa a competitive advantage over

any industry in the United States outside of American

Sa-moa; except that the committee shall recommend to the

Secretary the minimum wage rate prescribed in section

6(a) or 6(b), which would be applicable but for section

6(a)(3), unless there is evidence in the record which es-

tablishes that the industry, or a predominant portion

thereof, is unable to pay that wage due to such economic

and competitive conditions. 72

(c)The industry committee shall recommend such rea-

sonable classifications within any industry as it determines

to be necessary for the purpose of fixing for each classifica-

tion within such industry the highest minimum wage rate

(not in excess of that in effect under paragraph (1) or (5)



of section 6(a) (as the case may be)) which (1) will not

substantially curtail employment in such classification and

(2) will not give a competitive advantage to any group in

the industry, and shall recommend for each classification

in the industry the highest minimum wage rate which the

committee determines will not substantially curtail employ-

ment in such classification. In determining whether such

classifications should be made in any industry, in making

such classifications, and in determining the minimum wage

rates for such classifications, no classifications shall be


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64 As added by section 7 of the Fair Labor Standards Amendments of 1989.

65 Section 8 as amended by section 8 of the Fair Labor Standards Amendments of

1949; by section 7 of the Fair Labor Standards Amendments of 1961; by section 5(d)

of the Fair Labor Standards Amendments of 1974; by section 2(d)(3) of the Fair

Labor Standards Amendments of 1977; by section 4© of the Fair Labor Standards

Amendments of 1989; and as further amended as noted. Prior to November 17,

1989, wage order procedures also applied to Puerto Rico and the Virgin Islands until

such time as the mainland minimum wage level was reached. Paragraphs (b), (c),

(d), (e), and (f) as amended by the 1949 Act read substantially the same as para-

graphs (b) and (c) (except for the parenthetical reference to the minimum wage rate

provided in section 6(a), (d), (f) and (g) in the original Act).

66 See footnote 28.

67 Act of August 25, 1958 (72 Stat. 844).

68 As amended by Act of August 25, 1958 (72 Stat. 844).

69 See footnote 28.

70 As amended by section 5(b) of the Fair Labor Standards Amendments of 1955.

71 See footnote 28.

72 As amended by section 1 of the Act of November 15, 1990.

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made, and no minimum wage rate shall be fixed, solely on a

regional basis, but the industry committee 73 shall consider

among other relevant factors the following:

(1) competitive conditions as affected by transpor-

tation, living, and production costs;

(2) the wages established for work of like or com-

parable character by collective labor agreements negoti-

ated between employers and employees by representa-

tives of their own choosing; and

(3) the wages paid for work of like or comparable

character by employers who voluntarily maintain mini-

mum wage standards in the industry.

No classification shall be made under this section on the

basis of age or sex.

(d) The industry committee shall file with the Secretary

a report containing its findings of fact and recommenda-

tions with respect to the matters referred to it. Upon the

filing of such report, the Secretary shall publish such rec-

ommendations in the Federal Register and shall provide

by order that the recommendations contained in such re-

port shall take effect upon the expiration of 15 days after

the date of such publication. 74

(e) Orders issued under this section shall define the in-

dustries and classifications therein to which they are to ap-

ply, and shall contain such terms and conditions as the Sec-

retary 75 finds necessary to carry out the purposes of such

orders, to prevent the circumvention or evasion thereof,

and to safeguard the minimum wage rates established

therein. 76

(f) Due notice of any hearing provided for in this sec-

tion shall be given by publication in the Federal Register

and by such other means as the Secretary 77 deems reason-

ably calculated to give general notice to interested persons.
Attendance of Witnesses

SEC. 9. For the purpose of any hearing or investigation

provided for in this Act, the provisions of section 9 and 10

(relating to the attendance of witnesses and the production

of books, papers and documents) of the Federal Trade Com-

mission Act of September 16, 1914 as amended (U.S.C., 1934

edition, title 15, sec. 49 and 50), are hereby made appli-

cable to the jurisdiction, powers, and duties of the Secre-

tary of Labor 78 and the industry committees.
Court Review

SEC. 10. 79 (a) Any person aggrieved by an order of the

Secretary issued under section 8 may obtain a review of

such order in the United States Court of Appeals for any

circuit wherein such person resides or has his principal place

of business, or in the United States Court of Appeals for

the District of Columbia, by filing in such court, within 60

days after the entry of such order a written petition pray-

ing that the order of the Secretary be modified or set aside

in whole or in part. A copy of such petition shall forthwith

be transmitted by the clerk of the court to the Secretary,

and thereupon the Secretary shall file in the court the record

of the industry committee upon which the order complained

of was entered, as provided in section 2112 of title 28, United

States Code. Upon the filing of such petition such court

shall have exclusive jurisdiction to affirm, modify (includ-



ing provision for the payment of an appropriate mini-

mum wage rate), or set aside such order in whole or in

part, so far as it is applicable to the petitioner. 80 The review

by the court shall be limited to questions of law, and find-

ings of fact by such industry committee when supported

by substantial evidence shall be conclusive. No objection

to the order of the Secretary shall be considered by the

court unless such objection shall have been urged before

such industry committee or unless there were reasonable

grounds for failure so to do. If application is made to the

court for leave to adduce additional evidence, and it is shown

to the satisfaction of the court that such additional evidence

may materially affect the result of the proceeding and that

there were reasonable grounds for failure to adduce such

evidence in the proceedings before such industry commit-

tee, the court may order such additional evidence to be

taken before an industry committee and to be adduced upon

the hearing in such manner and upon such terms and con-

ditions as to the court may seem proper. Such industry

committee may modify the initial findings by reason of the

additional evidence so taken, and shall file with the court

such modified or new findings which if supported by sub-

stantial evidence shall be conclusive, and shall also file its

recommendation, if any, for the modification or setting aside

of the original order. The judgment and decree of the court

shall be final, subject to review by the Supreme Court of

the United States upon certiorari or certification as pro-

vided in section 1254 of title 28 of the United States Code.

(b) the commencement of proceedings under subsection

(a) shall not, unless specifically ordered by the court, oper-

ate as a stay of the Secretary™s 81 order. The court shall not

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73 As amended by sections 5© and 5(d) of the Fair Labor Standards Amendments

of 1955 (eliminating review by the Secretary of Labor of the recommendations of the

industry committee).

74 Ibid.

75 See footnote 28.

76 As amended by section 5(e) of the Fair Labor Standards Amendments of 1955.

77 See footnote 28.

78 Ibid.

79 Section 10(a) as amended by section 5(f) of the Fair Labor Standards Amend-

ments of 1955, and as further amended as noted.

80 Section 22 of the Act of August 28, 1958 (72 Stat. 948).

81 See footnote 28.

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grant any stay of the order unless the person complaining

of such order shall file in court an undertaking with a surety

or sureties satisfactory to the court for the payment to the

employees affected by the order, in the event such order is

affirmed, of the amount by which the compensation such

employees are entitled to receive under the order exceeds

the compensation they actually receive while such stay is

in effect.



Investigations, Inspections, Records, and

Homework Regulations

SEC. 11. (a) The Secretary of Labor 82 or his designated

representatives may investigate and gather data regard-

ing the wages, hours, and other conditions and practices of

employment in any industry subject to this Act, and may

enter and inspect such places and such records (and make

such transcriptions thereof), question such employees, and

investigate such facts, conditions, practices, or matters

as he may deem necessary or appropriate to determine

whether any person has violated any provision of this Act,

or which may aid in the enforcement of the provisions of

this Act. Except as provided in section 12 and in subsec-

tion (b) of this section, the Secretary 83 shall utilize the bu-

reaus and divisions of the Department of Labor for all the

investigations and inspections necessary under this section.

Except as provided in section 12, the Secretary 84 shall bring

all actions under section 17 to restrain violations of this Act.

(b) With the consent and cooperation of State agencies

charged with the administration of State labor laws, the

Secretary of Labor 85 may, for the purpose of carrying out

his functions and duties under this Act, utilize the services

of State and local agencies and their employees and, not-

withstanding any other provision of law, may reimburse

such State and local agencies and their employees for ser-

vices rendered for such purposes.

(c) Every employer subject to any provision of this Act

or of any order issued under this Act shall make, keep, and

preserve such records of the persons employed by him and

of the wages, hours, and other conditions and practices of

employment maintained by him, and shall preserve such

records for such periods of time, and shall make such re-

ports therefrom to the Secretary 86 as he shall prescribe by

regulation or order as necessary or appropriate for the en-

forcement of the provisions of this Act or the regulations

or orders thereunder. The employer of an employee

who performs substitute work described in section

7(p)(3) may not be required under this subsection to

keep a record of the hours of the substitute work.87

(d) The Secretary is authorized to make such regula-

tions and orders regulating, restricting, or prohibiting in-

dustrial homework as are necessary or appropriate to

prevent the circumvention or evasion of and to safeguard

the minimum wage rate prescribed in this Act, and all

existing regulations or orders of the Administrator relat-

ing to industrial homework are hereby continued in full

force and effect. 88

Child Labor Provisions

SEC. 12. (a) No producer, manufacturer, or dealer shall

ship or deliver for shipment in commerce any goods pro-

duced in an establishment situated in the United States in

or about which within thirty days prior to the removal of

such goods therefrom any oppressive child labor has been

employed: Provided, That any such shipment or delivery

for shipment of such goods by a purchaser who acquired

them in good faith in reliance on written assurance from

the producer, manufacturer, or dealer that the goods were

produced in compliance with the requirements of this sec-

tion, and who acquired such goods for value without notice

of any such violation, shall not be deemed prohibited by

this subsection: And provided further, That a prosecu-

tion and conviction of a defendant for the shipment or

delivery for shipment of any goods under the conditions

herein prohibited shall be a bar to any further prosecution

against the same defendant for shipments or deliveries for

shipment of any such goods before the beginning of said

prosecution. 89

(b) The Secretary of Labor, 90 or any of his authorized

representatives, shall make all investigations and inspec-

tions under section 11(a) with respect to the employment

of minors, and, subject to the direction and control of the

Attorney General, shall bring all actions under section 17

to enjoin any act or practice which is unlawful by reason

of the existence of oppressive child labor, and shall admin-

ister all other provisions of this Act relating to oppressive

child labor.

(c) No employer shall employ any oppressive child la-

bor in commerce or in the production of goods for com-

merce or in any enterprise engaged in commerce or in



the production of goods for commerce. 91

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82 See footnote 28.

83 Ibid.

84 Ibid.


85 See footnotes 10 and 28.

86 See footnote 28.

87 Added by section 3©(2) of the Fair Labor Standards Amendments of 1985, ef-

fective April 15,1986.


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