« PreviousContinue »
of farming outlined in the definition of "agriculture" in section 3(f) of the Act. These expressly include the cultivation and tillage of the soil and the growing and harvesting of any agricultural or horticultural commodities.
§ 780.915 "Place of first processing."
Under section 13(b)(16) the fruits or vegetables may be transported to only two types of places. One is a "place of first processing", which includes any place where canning, freezing, drying, preserving, or other operations which first change the form of the fresh fruits or vegetables from their raw and natural state are performed. (For overtime exemption applicable to "first processing," see part 526 of this chapter.) A plant which grades and packs only is not a place of first processing (Walling v. DeSoto Creamery and Produce Co., 51 F. Supp. 938). However, a packer's plant may qualify as a place of first marketing. (See § 780.916.)
§ 780.916 "Place of * * * first marketing.”
A "place of *** first marketing" is the second of the two types of places to which the freshly harvested fruits or vegetables may be transported from the farm under the exemption provided by section 13(b)(16). Typically, a place of first marketing is a farmer's market of the kind to which "delivery to market" is made within the meaning of section 3(f) of the Act when a farmer delivers such commodities there as an incident to or in conjunction with his own farming operations. Under section 13(b)(16), of course, there is no requirement that the transportation be performed by or for a farmer or as an incident to or in conjunction with any farming operations. A place of first marketing may be described in general terms as a place at which the freshly harvested fruits or vegetables brought from the farm are first delivered for marketing, such as a packing plant or an establishment of a wholesaler or other distributor, cooperative marketing agency, or processor to which the fruits or vegetables are first brought from the farm and delivered for sale. A place of first marketing may also be a place of first processing (see Mitchell v. Budd, 350 U.S.
473) but it need not be. The "first place of packing" to which the justharvested fruits or vegetables are transported from the farm is intended to be included. (See 107 Cong. Rec. (daily ed.) p. 4523.) Transportation to places which are not first processing or first marketing places is not exempt.
8 780.917 "Within the same State."
To qualify for exemption under section 13(b)(16), the transportation of the fruits or vegetables must be made to the specified places "within the same State" in which the farm is located. Transportation is made to a place "within the same State" when the commodities are taken from the farm, hauled and delivered within the same State to first markets or first processors for sale or processing at the place of delivery. The exemption is not provided for transportation to any place of first marketing or first processing across State lines and does not apply to any part of the transportation within the State of fruits or vegetables destined for a place in another State at which they are to be first marketed or first processed. Transportation from the farm to an intermediate point in such a journey located within the same State would not qualify for exemption; it would make no difference that the intermediate point is a place of first marketing or first processing for other fruits or vegetables if it is not actually such for the fruits or vegetables being transported. On the other hand, where the place to which fruits or vegetables are transported from the farm within the same State is actually the place of first marketing or first processing of those very commodities, transportation of the goods across State lines by the firstmarket operator or first processor, after such delivery to him within the State, does not affect the nature of the delivery to him as one made within the State.
EXEMPT TRANSPORTATION OF FRUIT OR VEGETABLE HARVEST EMPLOYEES
§ 780.918 Requisites for exemption generally.
Section 13(b)(16), in clause (B), provides an exemption from the minimum wage and overtime pay provisions of the Act for an employee during any workweek in which all the following conditions are satisfied:
(a) The employee must be engaged "in transportation" of harvest workers; and
(b) The harvest workers transported must be "persons employed or to be employed in the harvesting of fruits or vegetables"; and
(c) The employee's transportation of such harvest workers must be "between the farm and any point within the same State."
§ 780.919 Engagement “in transportation” of harvest workers.
In order for the exemption to apply, the employees must be engaged "in transportation" of the specified harvest workers between the points stated in the statute. Actual engagement "in transportation" of such workers is required. Engagement in other activities is not exempt work. Drivers, driver's helpers, and others who are engaged in the actual movement of the persons transported may qualify for the exemption. Office employees, garage mechanics, and other employees of the employer who may perform supporting activities but do not engage in the actual transportation work do not come within the exemption. There is no restriction in the statute as to the means of conveyance used; the exempt transportation may be by land, air, or water in any vehicle or conveyance appropriate for the purpose. Employees of any employer who are engaged in the specified transportation activities may qualify for exemption; it is not necessary that the transportation be performed § 780.905.)
by the farmer. (See
§ 780.920 Workers transported must be fruit or vegetable harvest workers. Clause (B) of section 13(b)(16) exempts only those transportation employees who are engaged in transpor
tation "of persons employed or to be employed in the harvesting of fruits or vegetables." Transportation of harvest workers is not exempt unless the workers are fruit and vegetable harvest workers; transportation of workers employed or to be employed in harvesting or other commodities is not exempt work under section 13(b)(16). Wirtz v. Osceola Farms Co., 372 F. (2d) 584 (C.A. 5). Nor does the exemption apply to the transportation of persons for the purpose of planting or cultivating any crop, whether or not it is a fruit or a vegetable crop.
§ 780.921 Persons "employed or to be employed" in fruit or vegetable harvesting.
The exemption applies to the transportation of persons "employed or to be employed" in the harvesting of fruits or vegetables. Included in this phrase are persons who at the time of transportation are currently employed in harvesting fruits or vegetables and others who, regardless of their occupation at such time, are being transported to be employed in such harvesting. The conveying of persons to a farm from a factory, packinghouse or processing plant would be exempt where their transportation is for the purpose of their employment in harvesting the named commodities. On the other hand, the transportation of harvest workers, who have been employed in the fruit or vegetable harvest, to such a plant for the purpose of their employment in the plant would not be exempt. The transportation must come within the the intended scope of section 13(b)(16) which is to provide exemption for "transportation of the harvest crew to and from the farm" (see 107 Cong. Rec. daily ed. p. 4523).
§ 780.922 "Harvesting” of fruits or vegetables.
Only transportation of employees employed or to be employed in the "harvesting" of fruits or vegetables is exempt under clause (B) of section 13(b)(16). As indicated in § 780.920, such harvest workers do not include employees employed or to be employed in planting or cultivating the crop. Nor do they include employees
employed or to be employed in operations subsequent to harvesting, even where such operations constitute "agriculture" within the definition in section 3(f) of the Act. "Harvesting" refers to the removal of fruits or vegetables from their growing position in the fields, and as explained in § 780.118 of this part, includes the operations customarily performed in connection with this severance of the crops from the soil (see Vives v. Serralles, 145 F. 2d 552), but does not extend to operations subsequent to and unconnected with the actual severance process or to operations performed off the farm. It may include moving the fruits or vegetables to concentration points on the farm, but would not include packingshed or other operations performed in preparation for market rather than as part of harvesting, such as ripening, cleaning, grading, sorting, drying, and storing. If the workers are employed or to be employed in “harvesting", it does not matter for purposes of the exemption whether a farmer or someone else employs them or does the harvesting. It is the character of their employment as "harvesting" and not the identity of their employer or the owner of the crop which determines whether their transportation to and from the farm will provide a basis for exemption of the transportation of employees.
§ 780.923 "Between the farm and any point within the same State."
The transportation of fruit or vegetable harvest workers is permitted "between the farm and any point within the same State". The exempt transportation of such harvest workers therefore includes their movement to and from the farm (see 107 Cong. Rec. (daily ed.) p. 4523). Such transportation must, however, be from or to points "within the same State" in which the farm is located. Crossing of State lines is not contemplated. Thus, the exemption would not apply to dayhaul transportation of fruit or vegetable harvest workers between a town in one State and farms located in another State. Also, the intent to exempt "transportation of the harvest crew to and from the farm" (see 107 Cong.
Rec. (daily ed.) p. 4523) within a single State would not justify exemption of the transportation of workers from one State to another to engage in harvest work in the latter State. The exemption does not apply to transportation of persons on any trip, or any portion of a trip, in which the point of origin or point of destination is in another State. Subject to these limitations, however, where employees are being transported for employment in harvesting they may be picked up in any place within the State, including other farms, packing or processing establishments, factories, transportation terminals, and other places. The broad term "any point" must be interpreted in the light of the purpose of the exemption to facilitate the harvesting of fruits or vegetables. Transportation from a farm to "any point" within the same State (such as a factory or processing plant) where some other purpose than harvesting is served is not exempt.
Subpart K-Employment of Home
workers in Making Wreaths; Exemption From Minimum Wage, Overtime Compensation, and Child Labor Provisions Under Section 13(d)
§ 780.1000 Scope and significance of interpretative bulletin.
Subpart A of this part 780 and this subpart K together constitute the official interpretative bulletin of the Department of Labor with respect to the meaning and application of section 13(d) of the Fair Labor Standards Act of 1938, as amended. This section provides an exemption from the minimum wage, overtime pay, and child labor provisions of the Act for certain homeworkers employed in making wreaths from evergreens and in harvesting evergreens and other forest products for use in making wreaths. Attention is directed to the fact that a limited overtime exemption for employees employed in the decoration greens industry is provided under section 7(c) of the Act (see part 526 of
this chapter). The section 7(c) exemption is not limited to homeworkers.
$780.1001 General explanatory statement.
Workers in rural areas sometimes engage, as a family unit, around the Christmas holidays, in gathering evergreens and making them into wreaths in their homes. Such workers, under well-settled interpretations by the Department of Labor and the courts, have been held to be employees of the firm which purchases the wreaths and furnishes the workers with wire used in making such wreaths.
REQUIREMENTS FOR EXEMPTION
§ 780.1002 Statutory requirements.
Section 13(d) of the Fair Labor Standards Act exempts from the minimum wage provisions of section 6, the overtime requirements of section 7 and the child labor restrictions of section 12:
Any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths).
§ 780.1003 What determines the application of the exemption.
The application of this exemption depends on the nature of the employee's work and not on the character of the employer's business. To determine whether an employee is exempt an examination should be made of the activities which that employee performs and the conditions under which he performs them. Some employees of the employer may be exempt and others may not.
§ 780.1004 General requirements.
The general requirements of the exemption are that:
(a) The employee must be a homeworker;
(b) The employee must be engaged in making wreaths as a homeworker;
(c) The wreaths must be made principally of evergreens;
(d) Any harvesting of the evergreens and other forest products by the homeworkers must be for use in making the wreaths by homeworkers.
The section 13(d) exemption does not apply when the wreaths are made in or about a place which is not considered a "home". Careful consideration is required in many cases to determine whether work is being performed in or about a home. Thus, the circumstances under which an employee may engage in work in what ostensibly is a "home" may require the conclusion, on an examination of all the facts, that the work is not being performed in or about a home within the intent of the term and for purposes of section 13(d) of the Act.
(c) Where an employee performs work on wreaths in a home and also engages in work on the wreaths for the employer during that workweek in a factory, he is not exempt in that week, since some of his work is not performed in a home.
The only product which may be produced under the section 13(d) exemption by a homeworker is a wreath having no less than the specified evergreen content. The making of a product other than a wreath is nonexempt even though it is made principally of evergreens.
§ 780.1010 Principally.
The exemption is intended to apply to the making of an evergreen wreath. Such a wreath is one made "principally" of evergreens. Principally means chiefly, in the main or mainly (Hartford Accident and Indemnity Co. v. Casualty Underwriters Insurance Co., 130 F. Supp. 56). A wreath is made "principally" of evergreens when it is comprised mostly of evergreens. For example, where a wreath is composed of evergreens and other kinds of material, the evergreens should comprise a greater part of the wreath than all the other materials together, including materials such as frames, stands, and wires. The principal portion of a wreath may consist of any one or any combination of the evergreens listed in section 13(d), including "other evergreens." The making of wreaths in which natural evergreens are a secondary component is not exempt.
§ 780.1011 Evergreens.
The material which must principally be used in making the wreaths is listed as "natural holly, pine, cedar, or other evergreens." Other plants or materials cannot be used to satisfy this requirement.
§ 780.1012 Other evergreens.
The "other evergreens" of which the wreath may be principally made include any plant which retains its greenness through all the seasons of the year, such as laurel, ivy, yew, fir, and others. While plants other than evergreens may be used in making the
wreaths, such plants, whether they are forest products cultivated plants, cannot be considered as part of the required principal evergreen component of the wreath.
8780.1013 Natural evergreens.
Only "natural" evergreens may comprise the principal part of the wreath. The word "natural” qualifies all of the evergreens listed in the section, including "other evergreens." The term natural means that the evergreens at the time they are being used in making a wreath must be in the raw and natural state in which they have been harvested. Artificial evergreens (Herring Magic v. U.S., 258 F. 2d 197; Cal. Casualty Indemnity Exchange v. Industrial Accident Commission of Cal. 90 P. 2d 289) or evergreens which have been processed as by drying and spraying with tinsel or by other means are not included. It is immaterial whether the natural evergreen used in making a wreath has been cultivated or is a product of the woods or forest.
§ 780.1014 Harvesting.
The homeworker is permitted to harvest evergreens and other forest products to be used in making the wreath. The word harvesting means the removal of evergreens and other forest products from their growing positions in the woods or forest, including transportation of the harvested products to the home of the homeworker and the performance of other duties necessary for such harvesting.
§ 780.1015 Other forest products.
The homeworker may also harvest "other forest products" for use in making wreaths. The term other forest products means any plant of the forest and includes, of course, deciduous plants as well.
§ 780.1016 Use of evergreens and forest products.
Harvesting of evergreens and other forest products is exempt only when these products will be "used in making such wreaths." The phrase "used in making such wreaths" places a definite limitation on the purpose for