The fair labor standards act of 1938, as amended




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115 A minimum wage exemption for these employees was repealed by the Fair La-


bor Standards Amendments of 1966.

116 A minimum wage exemption for these employees was repealed by the Fair La-


bor Standards Amendments of 1974.

117 Ibid.

118 Added by section 4(b) of the Fair Labor Standards Amendments of 1977,

effective January 1, 1978.


119 Added by section 633(d) of Public Law 103Œ329 (108 Stat. 2428), effective Sep-


tember 30, 1994.

120 As added by section 8 of the Fair Labor Standards Amendments of 1977, effec-

tive November 1, 1977.

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economic disruption in the industry of the employer

or group of employers applying for the

waiver;

(ii) the employment of the individuals to



whom the waiver would apply would not be deleterious

to their health or well-being;

(iii) the level and type of pesticides and

other chemicals used would not have an ad-verse

effect on the health or well-being of the

individuals to whom the waiver would apply;

(iv) individuals age twelve and above are

not available for such employment; and

(v) the industry of such employer or

group of employers has traditionally and substantially

employed individuals under twelve

years of age without displacing substantial job

opportunities for individuals over sixteen years

of age.


(B) Any waiver granted by the Secretary under

subparagraph (A) shall require that —

(i) the individuals employed under such

waiver be employed outside of school hours

for the school district where they are living while

so employed;

(ii) such individuals while so employed

commute daily from their permanent residence

to the farm on which they are so employed;

and


(iii) such individuals be employed under

such waiver (I) for not more than eight weeks

between June 1 and October 15 of any calendar

year, and (II) in accordance with such other

terms and conditions as the Secretary shall

prescribe for such individuals’ protection.

(5)121 (A) In the administration and enforcement

of the child labor provisions of this Act, employees

who are 16 and 17 years of age shall be permitted to

load materials into, but not operate or unload

materials from, scrap paper balers and paper box compactors

(i) that are safe for 16- and 17-year-old



employees loading the scrap paper balers or

paper box compactors; and

(ii) that cannot be operated while

being loaded.

(B) For purposes of subparagraph (A), scrap

paper balers and paper box compactors shall be

considered safe for 16- or 17-year-old employees to

load only if —

(i) (I) the scrap paper balers and

paper box compactors meet the Ameri-

can National Standard Institute’s Stan-

dard ANSI Z245.5–1990 for scrap paper

balers and Standard ANSI Z245.2–1992

for paper box compactors; or

(II) the scrap paper balers and

paper box compactors meet an appli-

cable standard that is adopted by the

American National Standards Institute

after the date of enactment of this para-

graph and that is certified by the Secre-

tary to be at least as protective of the

safety of minors as the standard described

in subclause (I);

(ii) the scrap paper balers and paper

box compactors include an on-off switch in-

corporat ing a key-lock or other system and

the control of the system is maintained in the

custody of employees who are 18 years of

age or older;

(iii) the on-off switch of the scrap pa-

per balers and paper box compactors is

maintained in an off position when the scrap

paper balers and paper box compactors are

not in operation; and

(iv) the employer of 16- and 17-year-old

employees provides notice, and posts a no-

tice, on the scrap paper balers and paper box

compactors stating that —

(I) the scrap paper balers and

paper box compactors meet the appli-

cable standard described in clause (i);

(II) 16- and 17-year-old employ-

ees may only load the scrap paper bal-

ers and paper box compactors; and

(III) any employee under the age

of 18 may not operate or unload the

scrap paper balers and paper box com-

pactors.


The Secretary shall publish in the Federal Register a

standard that is adopted by the American National

Standards Institute for scrap paper balers or paper box

compactors and certified by the Secretary to be pro-

tective of the safety of minors under clause (i)(II).

© (i) Employers shall prepare and submit

to the Secretary report s —

(I) on any injury to an employee

under the age of 18 that requires medi-

cal treatment (other than first aid) result-

ing from the employee’s contact with a

scrap paper baler or paper box com-

pactor during the loading, operation, or

unloading of the baler or compactor; and

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121 Added by section I of Public Law 104Œ174, effective August 6, 1996 (110 Stat.

1553).

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(II) on any fatality of an em-

ployee under the age of 18 resulting

from the employee’s contact with a scrap

paper baler or paper box compactor

during the loading, operation, or

unloading of the baler or compactor.

(ii) The reports described in clause (i)

shall be used by the Secretary to determine

whether or not the implementation of

sub-paragraph (A) has had any effect on the safety

of children.

(iii) The reports described in clause (i)

shall provide —

(I) the name, telephone number,

and address of the employer and the

address of the place of employment

where the incident occurred;

(II) the name, telephone number,

and address of the employee who suf-

fered an injury or death as a result of

the incident;

(III) the date of the incident;

(IV) a description of the injury and

a narrative describing how the incident

occurred; and

(V) the name of the manufacturer

and the model number of the scrap paper

baler or paper box compactor involved

in the incident.

(iv) The reports described in clause (i)

shall be submitted to the Secretary promptly,

but not later than 10 days after the date on

which an incident relating to an injury or

death occurred.

(v) The Secretary may not rely solely

on the report s described in clause (i) as the

basis for making a determination that any

of the employers described in clause (i) has

violated a provision of section 12 relating

to oppressive child labor or a regulation or

order issued pursuant to section 12. The Secre-

tary shall, prior to making such a

determination, conduct an investigation and inspection

in accordance with section 12(b).

(vi) The reporting requirements of this

subparagraph shall expire 2 years after the

date of enactment of this subparagraph.

[Note: Subsection 13(c)(5) shall not be construed as

affecting the exemption for apprentices and student

learners published in section 570.63 of Title 29, Code of

Federal Regulations.]

(d) The provisions of sections 6, 7, and 12 shall not ap-

ply with respect to any employee engaged in the delivery

of newspapers to the consumer or to any homeworker en-

gaged in the making of wreaths composed principally

of natural holly, pine, cedar, or other evergreens (in-

cluding the harvesting of the evergreens or other forest

products used in making such wreaths).

(e) The provisions of section 7 shall not apply with re-

spect to employees for whom the Secretary of Labor is au-

thorized to establish minimum wage rates as provided in

section 6(a)(3), except with respect to employees for whom

such rates are in effect; and with respect to such employ-

ees the Secretary may make rules and regulations provid-

ing reasonable limitations and allowing reasonable varia-

tions, tolerances, and exemptions to and from any or all of

the provisions of section 7 if he shall find, after a public

hearing on the matter, and taking into account the factors

set forth in section 6(a)(3), that economic conditions war-

rant such action. 122

(f) The provisions of sections 6, 7, 11, and 12, shall not

apply with respect to any employee whose services during

the workweek are performed in a workplace within a for-

eign country or within territory under the jurisdiction of

the United States other than the following: a State of the

United States; the District of Columbia; Puerto Rico; the

Virgin Islands; Outer Continental Shelf lands defined in

the Outer Continental Shelf Lands Act (ch. 345, 67 Stat.

462); American Samoa; Guam; Wake Island; Eniwetok Atoll,

Kwajalein Atoll; and Johnston Island. 123, 124

(g) The exemption from section 6 provided by par-

agraph (6) of subsection (a) of this section shall not

apply with respect to any employee employed by an

establishment (1) which controls, is controlled by, or is

under common control with, another establishment the

activities of which are not related for a common busi-

ness purpose to, but materially support the activities

of the establishment employing such employee; and (2)

whose annual gross volume of sales made or business

done, when combined with the annual gross volume of

sales made or business done by each establishment

which controls, is controlled by, or is under common con-

trol with, the establishment employing such employee,

exceeds $10,000,000 (exclusive of excise taxes at the re-

tail level which are separately stated.)

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122 Section 3 of the American Samoa Labor Standards Amendments of 1956.

123 Section 1(l) of the Act of August 30, 1957 (71 Stat. 514), as amended by section

21(b) of the Act of July 12, 1960 (74 Stat. 417), and by section 213 of the Fair Labor

Standards Amendments of 1966, and by Section 1225 of the Panama Canal Act of

1979 (93 Stat. 468).

124 Pursuant to Public Law 99Œ239, 99 Stat. 1770, the Fair Labor Standards Act no

longer applies to Eniwetok Atoll and Kwajalein Atoll, effective October 21, 1986.

Additionally, pursuant to Public Law 94Œ241, 90 Stat. 263 (48 U.S.C. 1681, note),

effective March 24, 1976, the Fair Labor Standards Act, except for section 6, applies

to the Northern Mariana Islands.

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(h) The provisions of section 7 shall not apply for a

period or periods of not more than fourteen workweeks

in the aggregate in any calendar year to any employee

who -


(1) is employed by such employer -

(A) exclusively to provide services neces-

sary and incidental to the ginning of cotton in an

establishment primarily engaged in the ginning

of cotton;

(B) exclusively to provide services neces-

sary and incidental to the receiving, handling,

and storing of raw cotton and the compressing of

raw cotton when performed at a cotton warehouse

or compress-warehouse facility, other than one

operated in conjunction with a cotton mill, pri-

marily engaged in storing and compressing;

© exclusively to provide services neces-

sary and incidental to the receiving, handling,

storing, and processing of cottonseed in an estab-

lishment primarily engaged in the receiving, han-

dling, storing, and processing of cottonseed; or

(D) exclusively to provide services neces-

sary and incidental to the processing of sugar cane

or sugar beets in an establishment primarily en-

gaged in the processing of sugar cane or sugar

beets; and

(2) receives for -

(A) such employment by such employer

which is in excess of ten hours in any workday,

and


(B) such employment by such employer

which is in excess of forty-eight hours in any

workweek; compensation at a rate not less than

one and one-half times the regular rate at which

he is employed.

Any employer who receives an exemption under this

subsection shall not be eligible for any other exemp-

tion under this section or section 7.

(i)125 The provisions of section 7 shall not apply for a

period or periods of not more than fourteen workweeks in

the aggregate in any period of fifty-two consecutive weeks

to any employee who —

(1) is engaged in the ginning of cotton for market

in any place of employment located in a county where

cotton is grown in commercial quantities; and

(2) receives for any such employment during such

workweeks —

(A) in excess of ten hours in any workday,

and

(B) in excess of forty-eight hours in any work-week,



compensation at a rate not less than one

and one-half times the regular rate at which he is

employed. No week included in any fifty-two week

period for purposes of the preceding sentence may

be included for such purposes in any other fifty-two

week period.

(j ) 126 The provisions of section 7 shall not apply for a

period or periods of not more than fourteen workweeks in

the aggregate in any period of fifty-two consecutive weeks

to any employee who —

(1) is engaged in the processing of sugar beets,

sugar beet molasses, or sugar cane into sugar (other

than refined sugar) or syrup; and

(2) receives for any such employment during such

workweeks —

(A) in excess of ten hours in any workday,

and

(B) in excess of forty-eight hours in any work-week,



compensation at a rate not less than one

and one-half times the regular rate at which he is

employed. No week included in any fifty-two week

period for purposes of the preceding sentence may

be included for such purposes in any other fifty-two

week period.



Learners, Apprentices, Students, and

Handicapped Workers

SEC. 14. 127 (a) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for employ-

ment, shall by regulations or by orders provide for the

employment of learners, of apprentices, and of messen-

gers employed primarily in delivering letters and mes-

sages, under special certificates issued pursuant to regu-

lations of the Secretary, at such wages lower than the

minimum wage applicable under section 6 and subject to

such limitations as to time, number, proportion, and length

of service as the Secretary shall prescribe.

(b) (1) (A) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for

employment, shall by special certificate issued

under a regulation or order provide, in accordance

with subparagraph (B), for the employment, at

a wage rate not less than 85 per centum of the

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125 Added by section 6(b) of the Fair Labor Standards Amendments of 1977, effec-

tive January 1, 1978.


126 Added by section 7(b) of the Fair Labor Standards Amendments of 1977, effec-


tive January 1, 1978.

127 As amended by section 24 of the Fair Labor Standards Amendments of 1974.


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otherwise applicable wage rate in effect under sec-

tion 6 or not less than $1.60 an hour, whichever is

higher, of full-time students (regardless of age but

in compliance with applicable child labor laws)

in retail or service establishments.

(B) Except as provided in paragraph (4)(B),

during any month in which full-time students are

to be employed in any retail or service establish-

ment under certificates issued under this subsec-

tion the proportion of student hours of employ-

ment to the total hours of employment of all

employees in such establishment may not exceed

-

(i) in the case of a retail or service es-



tablishment whose employees (other than

employees engaged in commerce or in the pro-

duction of goods for commerce) were covered

by this Act before the effective date of the Fair

Labor Standards Amendments of 1974 Š

(I) the proportion of student

hours of employment to the total hours

of employment of all employees in such

establishment for the corresponding

month of the immediately preceding

twelve-month period,

(II) the maximum proportion for

any corresponding month of student

hours of employment to the total hours

of employment of all employees in such

establishment applicable to the issu-

ance of certificates under this section at

any time before the effective date of the

Fair Labor Standards Amendments of

1974 for the employment of students by

such employer, or

(III) a proportion equal to one-

tenth of the total hours of employment

of all employees in such establishment,

whichever is greater;

(ii) in the case of retail or service es-

tablishment whose employees (other than

employees engaged in commerce or in the pro-

duction of goods for commerce) are covered

for the first time on or after the effective date

of the Fair Labor Standards Amendments of

1974 Š


(I) the proportion of hours of em-

ployment of students in such establish-

ment to the total hours of employment

of all employees in such establishment

for the corresponding month of the

twelve-month period immediately prior

to the effective date of such Amend-

ments,


(II) the proportion of student

hours of employment to the total hours

of employment of all employees in such

establishment for the corresponding

month of the immediately preceding

twelve-month period, or

(III) a proportion equal to one-

tenth of the total hours of employment

of all employees in such establishment,

whichever is greater; or

(iii) in the case of a retail or service es-

tablishment for which records of student

hours worked are not available, the propor-

tion of student hours of employment to the

total hours of employment of all employees

based on the practice during the immediately

preceding twelve-month period in (I) simi-

lar establishments of the same employer in

the same general metropolitan area in which

such establishment is located, (II) similar

establishments of the same or nearby com-

munities if such establishment is not in a me-

tropolitan area, or (III) other establishments

of the same general character operating in

the community or the nearest comparable

community.

For purpose of clauses (i), (ii), and (iii) of this

subparagraph, the term “student hours of employ-

ment” means hours during which students are

employed in a retail or service establishment un-

der certificates issued under this subsection.

(2) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for em-

ployment, shall by special certificate issued under a

regulation or order provide for the employment, at a

wage rate not less than 85 per centum of the wage rate

in effect under section 6(a)(5) or not less than $1.30 an

hour, whichever is the higher, of full-time students

(regardless of age but in compliance with applicable

child labor laws) in any occupation in agriculture.

(3) The Secretary, to the extent necessary in

order to prevent curtailment of opportunities for em-

ployment, shall by special certificate issued under a

regulation or order provide for the employment by an

institution of higher education, at a wage rate not less

than 85 per centum of the otherwise applicable wage

rate in effect under section 6 or not less than $1.60 an

hour, whichever is the higher, of full-time students (re-

gardless of age but in compliance with applicable child

labor laws) who are enrolled in such institution. The

Secretary shall by regulation prescribe standards and

requirements to insure that this paragraph will not

create a substantial probability of reducing the full-

time employment opportunities of persons other than

those to whom the minimum wage rate authorized by

this paragraph is applicable.

(4) (A) A special certificate issued under para-

graph (1), (2), or (3) shall provide that the stu-

dent or students for whom it is issued shall,

except during vacation periods, be employed on a

part-time basis and not in excess of twenty hours

in any workweek.

(B) 128 If the issuance of a special certificate

under paragraph (1) or (2) for an employer will

cause the number of students employed by such

employer under special certificates issued under

this subsection to exceed six, the Secretary may

not issue such a special certificate for the employ-

ment of a student by such employer unless the

Secretary finds employment of such student will

not create a substantial probability of reducing

the full-time employment opportunities of persons

other than those employed under special certifi-

cates issued under this subsection. If the issu-

ance of a special certificate under paragraph (1)

or (2) for an employer will not cause the number

of students employed by such employer under spe-

cial certificates issued under this subsection to

exceed six —

(i) the Secretary may issue a special

certificate under paragraph (1) or (2) for the

employment of a student by such employer if

such employer certifies to the Secretary that

the employment of such student will not re-

duce the full-time employment opportunities

of persons other than those employed under

special certificates issued under this subsec-

tion, and

(ii) in the case of an employer which

is a retail or service establishment, subpara-

graph (B) of paragraph (1) shall not apply

with respect to the issuance of special cer-

tificates for such employer under such

paragraph.

The requirement of this subparagraph shall not

apply in the case of the issuance of special cer-

tificates under paragraph (3) for the employment

of full-time students by institutions of higher edu-

cation; except that if the Secretary determines

that an institution of higher education is employ-

ing students under certificates issued under para-

graph (3) but in violation of the requirements of

that paragraph or of regulations issued thereun-

der, the requirements of this subparagraph shall

apply with respect to the issuance of special cer-

tificates under paragraph (3) for the employment

of students by such institution.

(C) No special certificate may be issued un-

der this subsection unless the employer for whom

the certificate is to be issued provides evidence

satisfactory to the Secretary of the student sta-

tus of the employees to be employed under such

special certificate.

(D)129 To minimize paperwork for, and to en-courage,

small businesses to employ students un-der

special certificates issued under paragraphs (1)

and (2), the Secretary shall, by regulation or order,

prescribe a simplified application form to be used

by employers in applying for such a certificate for

the employment of not more than six full-time stu-dents.

Such an application shall require only —

(i) a listing of the name, address, and

business of the applicant employer,

(ii) a listing of the date the applicant

began business, and

(iii) the certification that the employment

of such full-time students will not reduce the

full-time employment opportunities of persons

other than persons employed under special

certificates.

(c)130 (1) The Secretary, to the extent necessary to

pre-vent curtailment of opportunities for employment, shall

by regulation or order provide for the employment,

under special certificates, of individuals (including

in-dividuals employed in agriculture) whose earning or

pro-ductive capacity is impaired by age, physical or mental

deficiency, or injury, at wages which are —

(A) lower than the minimum wage applicable

under section 6,

(B) commensurate with those paid to

non-handicapped workers, employed in the vicinity in

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128 As amended by section 12 of the Fair Labor Standards Amendments of 1977,

effective November 1, 1977. The 1977 amendments substituted iusixlt for i.four.lr


129 Added by section 13 of the Fair Labor Standards Amendments of 1977, effective


November 1, 1977.

130 As amended by the Act of October 16, 1986 (100 Stat. 1229).

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which the individuals under the certificates are

employed, for essentially the same type, quality, and

quantity of work, and

(C) related to the individual’s productivity.

(2) The Secretary shall not issue a certificate

under paragraph (1) unless the employer provides written

assurances to the Secretary that —

(A) in the case of individuals paid on an hourly

rate basis, wages paid in accordance with para-

graph (1) will be reviewed by the employer at peri-

odic intervals at least once every six months, and

(B) wages paid in accordance with paragraph

(1) will be adjusted by the employer at periodic in-

tervals, at least once each year, to reflect changes

in the prevailing wage paid to experienced non-

handicapped individuals employed in the locality

for essentially the same type of work.

(3) Notwithstanding paragraph (1), no employer

shall be permitted to reduce the hourly wage rate

pre-scribed by certificate under this subsection in effect on

June 1, 1986, of any handicapped individual for a

period of two years from such date without prior

authorization of the Secretary.

(4) Nothing in this subsection shall be construed

to prohibit an employer from maintaining or establishing

work activities centers to provide therapeutic activities

for handicapped clients.

(5) (A) Notwithstanding any other provision of

this subsection, any employee receiving a special

minimum wage at a rate specified pursuant to this

subsection or the parent or guardian of such an

employee may petition the Secretary to obtain a

review of such special minimum wage rate. An em-

ployee or the employee’s parent or guardian may

file such a petition for and in behalf of the employee

or in behalf of the employee and other employees

similarly situated. No employee may be a party to

any such action unless the employee or the em-

ployee’s parent or guardian gives consent in writ-

ing to become such a party and such consent is

filed with the Secretary.

(B) Upon receipt of a petition filed in accor-

dance with subparagraph (A), the Secretary within

ten days shall assign the petition to an administra-

tive law judge appointed pursuant to section 3105

of title 5, United States Code. The administrative

law judge shall conduct a hearing on the record in

accordance with section 554 of title 5, United States

Code, with respect to such petition within thirty days

after assignment.

(C) In any such proceeding, the employer

shall have the burden of demonstrating that the

special minimum wage rate is justified as

necessary in order to prevent curtailment of

opportunities for employment.

(D) In determining whether any special

mini-mum wage rate is justified pursuant to

subparagraph (C), the administrative law judge shall

consider —

(i) the productivity of the employee or

employees identified in the petition and the

conditions under which such productivity was

measured; and

(ii) the productivity of other employees

performing work of essentially the same type

and quality for other employers in the same

vicinity.

(E) The administrative law judge shall issue

a decision within thirty days after the hearing

provided for in subparagraph (B). Such action shall

be deemed to be a final agency action unless within

thirty days the Secretary grants a request to

review the decision of the administrative law judge.

Either the petitioner or the employer may request

review by the Secretary within fifteen days of the

date of issuance of the decision by the

administrative law judge.

(F) The Secretary, within thirty days after

receiving a request for review, shall review the record

and either adopt the decision of the administrative

law judge or issue exceptions. The decision of the

administrative law judge, together with any

exceptions, shall be deemed to be a final agency action.

(G) A final agency action shall be subject to

judicial review pursuant to chapter 7 of title 5, United

States Code. An action seeking such review shall

be brought within thirty days of a final agency

action described in subparagraph (F).

(d) The Secretary may by regulation or order provide

that sections 6 and 7 shall not apply with respect to the

employment by any elementary or secondary school of

its students if such employment constitutes, as deter-

mined under regulations prescribed by the Secretary,

an integral part of the regular education program pro-

vided by such school and such employment is in accor-

dance with applicable child labor laws.


Prohibited Acts

SEC. 15. (a) After the expiration of one hundred and

twenty days from the date of enactment of this Act, it shall

be unlawful for any person -

(1) to transport, offer for transportation, ship, de-

liver, or sell in commerce, or to ship, deliver, or sell with

knowledge that shipment or delivery or sale thereof in

commerce is intended, any goods in the production of

which any employee was employed in violation of section

6 or section 7, or in violation of any regulation or order of

the Secretary of Labor 131 issued under section 14; except

that no provision of this Act shall impose any liability upon

any common carrier for the transportation in commerce

in the regular course of its business of any goods not pro-

duced by such common carrier, and no provision of this

Act shall excuse any common carrier from its obligation

to accept any goods for transportation; and except that

any such transportation, offer, shipment, delivery, or sale

of such goods by a purchaser who acquired them in good

faith in reliance on written assurance from the producer

that the goods were produced in compliance with the re-

quirements of the Act, and who acquired such goods for

value without notice of any such violation, shall not be

deemed unlawful; 132

(2) to violate any of the provisions of section 6 or

section 7, or any of the provisions of any regulation or

order of the Secretary 133 issued under section 14;

(3) to discharge or in any other manner discrimi-

nate against any employee because such employee has

filed any compliant or instituted or caused to be insti-

tuted any proceeding under or related to this Act, or has

testified or is about to testify in any such proceeding, or

has served or is about to serve on an industry commit-

tee; 134


(4) to violate any of the provisions of section 12;

(5) to violate any of the provisions of section 11©

or any regulation or order made or continued in effect

under the provisions of section 11(d), or to make any state-

ment, report, or record filed or kept pursuant to the pro-

visions of such section or of any regulation or order there-

under, knowing such statement, report, or record to be

false in a material respect. 135

(b) For the purposes of subsection (a)(1) proof that any

employee was employed in any place of employment where

goods shipped or sold in commerce were produced, within

ninety days prior to the removal of the goods from such

place of employment, shall be prima facie evidence that such

employee was engaged in the production of such goods.


Penalties 136
SEC. 16. (a) Any person who willfully violates any of the

provisions of section 15 shall upon conviction thereof be sub-

ject to a fine of not more than $10,000, or to imprisonment

for not more than six months, or both. No person shall be

imprisoned under this subsection except for an offense com-

mitted after the conviction of such person for a prior of-

fense under this subsection.

(b) Any employer who violates the provisions of section

6 or section 7 of this Act shall be liable to the employee or

employees affected in the amount of their unpaid minimum

wages, or their unpaid overtime compensation, as the case

may be, and in an additional equal amount as liquidated

damages. Any employer who violates the provisions of

section 15(a)(3) of this Act shall be liable for such legal or

equitable relief as may be appropriate to effectuate the

purposes of section 15(a)(3), including without limitation

employment, reinstatement, promotion, and the payment

of wages lost and an additional equal amount as liquidated

damages. An action to recover the liability pre-scribed

in either of the preceding sentences may be maintained

against any employer (including a public agency)

in any Federal or State court of competent jurisdiction by

any one or more employees for and in behalf of himself or

themselves and other employees similarly situated. No em-

ployee shall be a party plaintiff to any such action unless

he gives his consent in writing to become such a party and

such consent is filed in the court in which such action is

brought. 137 The court in such action shall, in addition to

any judgment awarded to the plaintiff or plaintiffs, allow a

reasonable attorney’s fee to be paid by the defendant, and

costs of the action. The right provided by this subsection

to bring an action by or on behalf of any employee, and

the right of any employee to become a party plaintiff to

any such action, shall terminate upon the filing of a

complaint by the Secretary of Labor in an action under

section 17 in which (1) restraint is sought of any fur-

ther delay in the payment of unpaid minimum wages,

or the amount of unpaid overtime compensation as the

case may be, owing to such employee under section 6 or

--------------------------------------------------------------------------------------------------

131 See footnote 28.

132 As amended by section 13(a) of the Fair Labor Standards Amendments of 1949.

133 See footnote 28.

134 Section 8 of the Fair Labor Standards Amendments of 1985 contains special dis-

crimination provisions applicable to public agencies.

135 As amended by section 13(b) of the Fair Labor Standards Amendments of 1949.

136 The Portal-to-Portal Act of 1947 relieves employers from certain liabilities and

punishments under this Act in circumstances specified in that Act. See also section

2© of the Fair Labor Standards Amendments of 1985, which relieves certain public

agencies of certain liabilities under this Act prior to April 15, 1986.

137 Amendment provided by section 5(a) of the Portal-to-Portal Act of 1947.

-----------------------------------------------------------------------------------------------------


section 7 of this Act by an employer liable therefor un-

der the provisions of this subsection or (2) legal or equi-table

relief is sought as a result of alleged violations of

section 15(a)(3).138

(c) The Secretary 139 is authorized to supervise the pay-

ment of the unpaid minimum wages or the unpaid over-

time compensation owing to any employee or employees

under section 6 or 7 of this Act, and the agreement of any

employee to accept such payment shall upon payment in

full constitute a waiver by such employee of any right he

may have under subsection (b) of this section to such un-

paid minimum wages or unpaid overtime compensation and

an additional equal amount as liquidated damages. The

Secretary may bring an action in any court of competent

jurisdiction to recover the amount of the unpaid minimum

wages or overtime compensation and an equal amount

as liquidated damages. 140 The right provided by subsec-

tion (b) to bring an action by or on behalf of any em-

ployee to recover the liability specified in the first sentence

of such subsection and of any employee to become a party

plaintiff to any such action shall terminate upon the

filing of a complaint by the Secretary in an action un-

der this subsection in which a recovery is sought of un-

paid minimum wages or unpaid overtime compensation

under sections 6 and 7 or liquidated or other damages

provided by this subsection owing to such employee by

an employer liable under the provisions of subsection

(b), unless such action is dismissed without prejudice

on motion of the Secretary. Any sums thus recovered by

the Secretary on behalf of an employee pursuant to this

subsection shall be held in a special deposit account and

shall be paid, on order of the Secretary, directly to the em-

ployee or employees affected. Any such sums not paid to

an employee because of inability to do so within a period of

three years shall be covered into the Treasury of the United

States as miscellaneous receipts. In determining when an

action is commenced by the Secretary under this subsec-

tion for the purposes of the statutes 141 of limitations pro-

vided in section 6(a) of the Portal-to-Portal Act of 1947, it

shall be considered to be commenced in the case of any

individual claimant on the date when the complaint is filed

if he is specifically named as a party plaintiff in the com-

plaint, or if his name did not so appear, on the subsequent

date on which his name is added as a party plaintiff in such

action. 142

(d) In any action or proceeding commenced prior to, on,

or after the date of enactment of this subsection, no em-

ployer shall be subject to any liability or punishment under

this Act of the Portal-to-Portal Act of 1947 on account of his

failure to comply with any provision or provisions of such

Acts (1) with respect to work heretofore or hereafter per-

formed in a workplace to which the exemption in section

13(f) is applicable, (2) with respect to work performed in

Guam, the Canal Zone or Wake Island before the effective

date of this amendment of subsection (d), or (3) with re-

spect to work performed in a possession named in section

6(a)(3) at any time prior to the establishment by the Secre-

tary, as provided therein, of a minimum wage rate appli-

cable to such work. 143

(e) Any person who violates the provisions of section

12 or section 13(c)(5),144 relating to child labor, or any

regulation issued under section 12 or section 13(c)(5),145

shall be subject to a civil penalty of not to exceed $10,000

for each employee who was the subject of such a viola-

tion. Any person who repeatedly or willfully violates

section 6 or 7 shall be subject to a civil penalty of not to

exceed $1,000 for each such violation. 146 In determining

the amount of any penalty under this subsection, the

appropriateness of such penalty to the size of the busi-

ness of the person charged and the gravity of the viola-

tion shall be considered. The amount of any penalty

under this subsection, when finally determined, may be

-

(1) deducted from any sums owing by the United



States to the person charged;

(2) recovered in a civil action brought by the

Secretary in any court of competent jurisdiction, in

which litigation the Secretary shall be represented by

the Solicitor of Labor; or

(3) ordered by the court, in an action brought for

a violation of section 15(a)(4) or a repeated or willful

violation of section 15(a)(2),147 to be paid to the Secre-

tary.

Any administrative determination by the Secretary of



the amount of any penalty under this subsection shall

---------------------------------------------------------------------------------------------

138 The Fair Labor Standards Amendments of 1977 amended subsection 16(b),

effective January 1, 1978, to authorize a private right of action for violations of sub-

section 15(a)(3) of the Act. Prior to this amendment, only the Secretary of Labor

was authorized to bring an action for violations of subsection 15(a)(3).

139 See footnote 28.

140 The provision for liquidated damages was added by the Fair Labor Standards

Amendments of 1974. These Amendments also deleted the prior requirements that

section 16© suits be brought only on the written request of the employee and if the

case did not involve any issue of law which had not been finally settled by the courts.

141 Amended by section 601 of the Fair Labor Standards Amendments of 1966.

142 Section 14 of the Fair Labor Standards Amendments of 1949, as amended by

Reorganization Plan No. 6 of 1950 and the Fair Labor Standards Amendments of

1966.

143 Section 4 of the American Samoa Labor Standards Amendments of 1956, as



amended by section 1(2) of the Act of August 30, 1957 (71 Stat. 514), effective No-

vember 27, 1957.

144 As amended by section 2 of Public Law 104Œ174 (110 Stat. 1554).

145 Ibid.

146 As added by section 9 of the Fair Labor Standards Amendments of 1989, and

amended by section 3103 of the Omnibus Budget Reconciliation Act of 1990.

147 As added by section 9 of the Fair Labor Standards Amendments of 1989.

---------------------------------------------------------------------------------------------

be final, unless within fifteen days after receipt of

notice thereof by certified mail the person charged with

the violation takes exception to the determination that

the violations for which the penalty is imposed occurred,

in which event final determination of the penalty shall

be made in an administrative proceeding after oppor-

tunity for hearing in accordance with section 554 of title

5, United States Code, and regulations to be promulgated

by the Secretary. Except for civil penalties collected for

violations of section 12, sums collected as penalties pur-

suant to this section shall be applied toward reimburse-

ment of the costs of determining the violations and

assessing and collecting such penalties, in accordance

with the provision of section 2 of an Act entitled inAn Act

to authorize the Department of Labor to make special

statistical studies upon payment of the cost thereof, and

for other purposesls (29 U.S.C. 9a). Civil penalties col-

lected for violations of section 12 shall be deposited in

the general fund of the Treasury. 148
Injunction Proceedings

SEC. 17. The district courts, together with the United

States District Court for the District of the Canal Zone,

the District Court of the Virgin Islands, and the Dis-

trict Court of Guam shall have jurisdiction, for cause

shown, to restrain violations of section 15, including

in the case of violations of section 15(a)(2) the restraint

of any withholding of payment of minimum wages or

overtime compensation found by the court to be due to

employees under this Act (except sums which em-

ployees are barred from recovering, at the time of the

commencement of the action to restrain the violations,

by virtue of the provisions of section 6 of the Portal-to-

Portal Act of 1947). 149



Relation to Other Laws

SEC. 18. (a) No provisions of this Act or of any order

thereunder shall excuse noncompliance with any Federal

or State law or municipal ordinance establishing a minium

wage higher than the minium wage established under this

Act or a maximum workweek lower than the maximum

workweek established under this Act, and no provision of

this Act relating to the employment of child labor shall

justify noncompliance with any Federal or State law or mu-

nicipal ordinance establishing a higher standard than the

14

standard established under this Act. No provision of this



Act shall justify any employer in reducing a wage paid by

him which is in excess of the applicable minimum wage un-

der this Act, or justify any employer in increasing hours of

employment maintained by him which are shorter than the

maximum hours applicable under this Act.

(b) Notwithstanding any other provision of this Act

(other than section 13(f)) or any other law -

(1) any Federal employee in the Canal Zone en-

gaged in employment of the kind described in section

5102(c)(7) of title 5, United States Code, or 150

(2) any employee employed in a nonappropriated

fund instrumentality under the jurisdiction of the

Armed Forces, 151

shall have his basic compensation fixed or adjusted at a

wage rate which is not less than the appropriate wage rate

provided for in section 6(a)(1) of this Act (except that the

wage rate provided for in section 6(b) shall apply to any

employee who performed services during the workweek in

a work place within the Canal Zone), and shall have his

overtime compensation set at an hourly rate not less than

the overtime rate provided for in section 7(a)(1) of this Act.

Separability of Provisions

SEC. 19. If any provision of this Act or the application of

such provision to any persons or circumstances is held in-

valid, the remainder of the Act and the application of such

provision to other persons or circumstances shall not be

affected thereby.

Approved, June 25, 1938.

----------------------------------------------------------------------------------------------

152

8 As amended by section 3103 of the Omnibus Budget Reconciliation Act of 1990.



149 As amended by section 12 of the Fair Labor Standards Amendments of 1961.

150 Paragraph (1), as amended by Public Law 90Œ83, 81 Stat. 222, omits reference to

other employees covered under paragraph (1) of this subsection as enacted in the

Fair Labor Standards Amendments of 1966, section 306, whose compensation re-

quirements under such Amendments are now incorporated in 5 U.S.C. 5341 and

5 U.S.C. 5544.

151 Paragraph (2) was formerly paragraph (3) of subsection (b) as enacted in the

Fair Labor Standards Amendments of 1966, section 306. It was renumbered in the

amendment by Public Law 90Œ83, 81 Stat. 222, which omitted the former paragraph

(2) referring to employees described in 10 U.S.C. 7474 because of repeal of the latter

provision by Public Law 89Œ554, 80 Stat. 663.

152 The Fair Labor Standards Amendments of 1949 were approved October 26, 1949;

the Fair Labor Standards Amendments of 1955 were approved August 12, 1955;

the American Samoa Labor Standards Amendments were approved August 8, 1956;

the Fair Labor Standards Amendments of 1961 were approved May 5, 1961; the

Fair Labor Standards Amendments of 1966 were approved September 23, 1966;

the Fair Labor Standards Amendments of 1974 were approved April 8, 1974; the

Fair Labor Standards Amendments of 1977 were approved November 1, 1977;

the Fair Labor Standards Amendments of 1985 were approved November 13, 1985;

the Fair Standards Amendments of 1989 were approved November 17, 1989; and the

Small Business Job Protection Act of 1996, which included the Employee Com-

muting Flexibility Act of 1996, the Minimum Wage Increase Act of 1996, and Fair

Labor Standards Act Amendments, was approved on August 20, 1996.
ADDITIONAL PROVISIONS OF THE SMALL BUSINESS JOB PROTECTION ACT OF 1996

[PUBLIC LAW 104Œ188]

[104TH CONGRESS] [SECOND SESSION]

AN ACT

To provide tax relief for small businesses, to protect jobs,

to create opportunities, to increase the take home pay of

workers, to amend the Portal-to-Portal Act of 1947 relating

to the payment of wages to employees who use employer

owned vehicles, and to amend the Fair Labor Standards

Act of 1938 to increase the minimum wage rate and to pre-

vent job loss by providing flexibility to employers in com-

plying with minimum wage and overtime requirements

under that Act.

(110 Stat. 1755)

SEC. 2101. SHORT TITLE.

This section and sections 2102 and 2103 may be cited as

the “Employee Commuting Flexibility Act of 1996.”

* * * * * *

SEC. 2103. EFFECTIVE DATE.

The amendment made by section 2102 shall take effect

on the date of enactment of this Act and shall apply in

determining the application of section 4 of the Portal-to-

Portal Act of 1947 to an employee in any civil action brought

before such date of enactment but pending on such date.


LEGISLATIVE HISTORY - H.R. 3448:

HOUSE REPORTS: Nos. 104-586 (Comm. on Ways and

Means) and 104-737 (Comm. of Conference).

SENATE REPORTS: No. 104-281 (Comm. on Finance).

CONGRESSIONAL RECORD, Vol 142 (1996):

May 22, considered and passed House.

July 8, 9, considered and passed Senate, amended.

Aug. 2, House and Senate agreed to conference report.

WEEKLY COMPILATION OF PRESIDENTIAL

DOCUMENTS, Vol. 32 (1996):

Aug. 20, Presidential remarks and statement..




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