29 U.S.C. § 203 — Definitions

Page 63 TITLE 29—LABOR § 203 1 So in original. Probably should be preceded by ‘‘in’’. § 202. Congressional finding and declaration of policy (a) The Congress finds that the existence, in industries engaged in commerce or in the pro- duction of goods for commerce, of labor condi- tions detrimental 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) bur- dens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor dis- putes 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. That Congress further finds that the employment of persons in domestic service in households affects commerce. (b) It is declared to be the policy of this chap- ter, through the exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct and as rapidly as practicable to eliminate the condi- tions above referred to in such industries with- out substantially curtailing employment or earning power. (June 25, 1938, ch. 676, § 2, 52 Stat. 1060; Oct. 26, 1949, ch. 736, § 2, 63 Stat. 910; Pub. L. 93–259, § 7(a), Apr. 8, 1974, 88 Stat. 62.) Editorial Notes AMENDMENTS 1974—Subsec. (a). Pub. L. 93–259 inserted finding of Congress that employment of persons in domestic serv- ice in households affects commerce. 1949—Subsec. (b). Act Oct. 26, 1949, inserted reference to regulation of commerce with foreign nations. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Pub. L. 93–259, § 29(a), Apr. 8, 1974, 88 Stat. 76, provided that: ‘‘Except as otherwise specifically provided, the amendments made by this Act [see Short Title of 1974 Amendment note set out under section 201 of this title] shall take effect on May 1, 1974.’’ EFFECTIVE DATE OF 1949 AMENDMENT Act Oct. 26, 1949, ch. 736, § 16(a), 63 Stat. 919, provided that: ‘‘The amendments made by this Act [enacting section 216b of this title, amending this section and sec- tions 203 to 208, 211 to 216, and 217 of this title, and re- pealing section 216a of this title] shall take effect upon the expiration of ninety days from the date of its en- actment [Oct. 26, 1947]; except that the amendment made by section 4 [amending section 204 of this title] shall take effect on the date of its enactment [Oct. 26, 1949].’’ RULES, REGULATIONS, AND ORDERS WITH REGARD TO FAIR LABOR STANDARDS AMENDMENTS OF 1974 Pub. L. 93–259, § 29(b), Apr. 8, 1974, 88 Stat. 76, provided that: ‘‘Notwithstanding subsection (a) [set out as an Ef- fective Date of 1974 Amendment note above], on and after the date of the enactment of this Act [Apr. 8, 1974] the Secretary of Labor is authorized to prescribe nec- essary rules, regulations, and orders with regard to the amendments made by this Act [see Short Title of 1974 Amendment note set out under section 201 of this title].’’ § 203. Definitions As used in this chapter— (a) ‘‘Person’’ means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of per- sons. (b) ‘‘Commerce’’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof. (c) ‘‘State’’ means any State of the United States or the District of Columbia or any Terri- tory or possession of the United States. (d) ‘‘Employer’’ includes any person acting di- rectly or indirectly in the interest of an em- ployer in relation to an employee and includes a public agency, but does not include any labor or- ganization (other than when acting as an em- ployer) or anyone acting in the capacity of offi- cer or agent of such labor organization. (e)(1) Except as provided in paragraphs (2), (3), and (4), the term ‘‘employee’’ means any indi- vidual employed 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— (i) as a civilian in the military depart- ments (as defined in section 102 of title 5), (ii) in any executive agency (as defined in section 105 of such title), (iii) in any unit of the judicial branch of the Government which has positions in the competitive service, (iv) in a nonappropriated fund instrumen- tality under the jurisdiction of the Armed Forces, (v) in the Library of Congress, or (vi) the 1 Government Publishing Office; (B) any individual employed by the United States Postal Service or the Postal Regu- latory Commission; and (C) any individual employed by a State, po- litical subdivision of a State, or an interstate governmental agency, other than such an indi- vidual— (i) who is not subject to the civil service 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 personal staff, (III) is appointed by such an officeholder to serve on a policymaking level, (IV) is an immediate adviser to such an officeholder with respect to the constitu- tional or legal powers of his office, 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 indi- Page 64 TITLE 29—LABOR § 203 2 See References in Text note below. vidual is the parent, spouse, child, or other member of the employer’s immediate family. (4)(A) The term ‘‘employee’’ does not include any individual who volunteers to perform serv- ices for a public agency which is a State, a polit- ical subdivision of a State, or an interstate gov- ernmental 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 agen- cy with which the employing State, political subdivision, or agency has a mutual aid agree- ment. (5) The term ‘‘employee’’ does not include in- dividuals who volunteer their services solely for humanitarian purposes to private non-profit food banks and who receive from the food banks groceries. (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 commod- ities (including commodities defined as agricul- tural commodities in section 1141j(g) 2 of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (includ- ing any forestry or lumbering operations) per- formed by a farmer or on a farm as an incident to or in conjunction with such farming oper- ations, including preparation for market, deliv- ery 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, indus- try, or other activity, or branch or group there- of, in which individuals are gainfully employed. (i) ‘‘Goods’’ means goods (including ships and marine equipment), wares, products, commod- ities, merchandise, or articles or subjects of commerce of any character, or any part or in- gredient thereof, but does not include goods after their delivery into the actual physical pos- session of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. (j) ‘‘Produced’’ means produced, manufac- tured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, man- ufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation di- rectly essential to the production thereof, in any State. (k) ‘‘Sale’’ or ‘‘sell’’ includes any sale, ex- change, contract to sell, consignment for sale, shipment for sale, or other disposition. (l) ‘‘Oppressive child labor’’ means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person stand- ing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufac- turing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or (2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of children be- tween such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employ- ment in any occupation of any person with re- spect to whom the employer shall have on file an unexpired certificate issued and held pursu- ant to regulations of the Secretary of Labor cer- tifying that such person is above the oppressive child-labor age. The Secretary of Labor shall provide by regulation or by order that the em- ployment of employees between the ages of four- teen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being. (m)(1) ‘‘Wage’’ paid to any employee includes the reasonable cost, as determined by the Ad- ministrator, to the employer of furnishing such employee with board, lodging, or other facili- ties, if such board, lodging or other facilities are customarily furnished by such employer to his employees: Provided, That the cost of board, lodging, or other facilities shall not be included as a part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective-bargaining agree- ment applicable to the particular employee: Pro- vided further, That the Secretary is authorized to determine the fair value of such board, lodg- ing, or other facilities for defined classes of em- ployees and in defined areas, based on average cost to the employer or to groups of employers similarly situated, or average value to groups of employees, or other appropriate measures of fair value. Such evaluations, where applicable and pertinent, shall be used in lieu of actual meas- ure of cost in determining the wage paid to any employee. (2)(A) In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee’s employer shall be an amount equal to— (i) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and (ii) an additional amount on account of the tips received by such employee which amount Page 65 TITLE 29—LABOR § 203 is equal to the difference between the wage specified in clause (i) and the wage in effect under section 206(a)(1) of this title. The additional amount on account of tips may not exceed the value of the tips actually re- ceived by an employee. The preceding 2 sen- tences shall not apply with respect to any tipped employee unless such employee has been in- formed by the employer of the provisions of this subsection, and all tips received by such em- ployee have been retained by the employee, ex- cept that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. (B) An employer may not keep tips received by its employees for any purposes, including allow- ing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit. (n) ‘‘Resale’’ shall not include the sale of goods to be used in residential or farm building construction, repair, or maintenance: Provided, That the sale is recognized as a bona fide retail sale in the industry. (o) Hours Worked.—In determining for the pur- poses of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from meas- ured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agree- ment applicable to the particular employee. (p) ‘‘American vessel’’ includes any vessel which is documented or numbered under the laws of the United States. (q) ‘‘Secretary’’ means the Secretary of Labor. (r)(1) ‘‘Enterprise’’ means the related activi- ties performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more cor- porate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not in- clude the related activities performed for such enterprise by an independent contractor. Within the meaning of this subsection, a retail or serv- ice establishment which is under independent ownership shall not be deemed to be so operated or controlled as to be other than a separate and distinct enterprise by reason of any arrange- ment, which includes, but is not necessarily lim- ited to, an agreement, (A) that it will sell, or sell only, certain goods specified by a particular manufacturer, distributor, or advertiser, or (B) that it will join with other such establishments in the same industry for the purpose of collec- tive purchasing, or (C) that it will have the ex- clusive right to sell the goods or use the brand name of a manufacturer, distributor, or adver- tiser within a specified area, or by reason of the fact that it occupies premises leased to it by a person who also leases premises to other retail or service establishments. (2) For purposes of paragraph (1), the activities performed by any person or persons— (A) in connection with the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or phys- ically handicapped or gifted children, a pre- school, elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is operated for profit or not for profit), or (B) in connection with the operation of a street, suburban or interurban electric rail- way, or local trolley or motorbus carrier, if the rates and services of such railway or car- rier are subject to regulation by a State or local agency (regardless of whether or not such railway or carrier is public or private or operated for profit or not for profit), or (C) in connection with the activities of a public agency, shall be deemed to be activities performed for a business purpose. (s)(1) ‘‘Enterprise engaged in commerce or in the production of goods for commerce’’ means an enterprise that— (A)(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or other- wise working on goods or materials that have been moved in or produced for commerce by any person; and (ii) is an enterprise whose annual gross vol- ume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); (B) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defec- tive who reside on the premises of such insti- tution, a school for mentally or physically handicapped or gifted children, a preschool, el- ementary or secondary school, or an institu- tion of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit); or (C) is an activity of a public agency. (2) Any establishment that has as its only reg- ular employees the owner thereof or the parent, spouse, child, or other member of the immediate family of such owner shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce or a part of such an enterprise. The sales of such an estab- lishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this sub- section. (t) ‘‘Tipped employee’’ means any employee engaged in an occupation in which he custom- arily and regularly receives more than $30 a month in tips. (u) ‘‘Man-day’’ means any day during which an employee performs any agricultural labor for not less than one hour. (v) ‘‘Elementary school’’ means a day or resi- dential school which provides elementary edu- cation, as determined under State law. (w) ‘‘Secondary school’’ means a day or resi- dential school which provides secondary edu- cation, as determined under State law. Page 66 TITLE 29—LABOR § 203 (x) ‘‘Public agency’’ means the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Post- al Service and Postal Regulatory Commission), a State, or a political subdivision of a State; or any interstate governmental agency. (y) ‘‘Employee in fire protection activities’’ means an employee, including a firefighter, paramedic, emergency medical technician, res- cue worker, ambulance personnel, or hazardous materials worker, who— (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire de- partment of a municipality, county, fire dis- trict, or State; and (2) is engaged in the prevention, control, and extinguishment of fires or response to emer- gency situations where life, property, or the environment is at risk. (June 25, 1938, ch. 676, § 3, 52 Stat. 1060; 1946 Reorg. Plan No. 2, § 1(b), eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095; Oct. 26, 1949, ch. 736, § 3, 63 Stat. 911; Pub. L. 87–30, § 2, May 5, 1961, 75 Stat. 65; Pub. L. 89–601, title I, §§ 101–103, title II, § 215(a), Sept. 23, 1966, 80 Stat. 830–832, 837; Pub. L. 92–318, title IX, § 906(b)(2), (3), June 23, 1972, 86 Stat. 375; Pub. L. 93–259, §§ 6(a), 13(e), Apr. 8, 1974, 88 Stat. 58, 64; Pub. L. 95–151, §§ 3(a), (b), 9(a)–(c), Nov. 1, 1977, 91 Stat. 1249, 1251; Pub. L. 99–150, §§ 4(a), 5, Nov. 13, 1985, 99 Stat. 790; Pub. L. 101–157, §§ 3(a), (d), 5, Nov. 17, 1989, 103 Stat. 938, 939, 941; Pub. L. 104–1, title II, § 203(d), Jan. 23, 1995, 109 Stat. 10; Pub. L. 104–188, [title II], § 2105(b), Aug. 20, 1996, 110 Stat. 1929; Pub. L. 105–221, § 2, Aug. 7, 1998, 112 Stat. 1248; Pub. L. 106–151, § 1, Dec. 9, 1999, 113 Stat. 1731; Pub. L. 109–435, title VI, § 604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 115–141, div. S, title XII, § 1201(a), Mar. 23, 2018, 132 Stat. 1148.) Editorial Notes REFERENCES IN TEXT Section 1141j(g) of title 12, referred to in subsec. (f), was redesignated section 1141j(f) by Pub. L. 110–246, title I, § 1610, June 18, 2008, 122 Stat. 1746. AMENDMENTS 2018—Subsec. (m). Pub. L. 115–141 designated first and second sentences of existing provisions as par. (1) and remainder of existing provisions as par. (2)(A), redesig- nated former pars. (1) and (2) as cls. (i) and (ii), respec- tively, of par. (2)(A) and, in cl. (ii), substituted ‘‘clause (i)’’ for ‘‘paragraph (1)’’, and added subpar. (B) of par. (2). 2006—Subsecs. (e)(2)(B), (x). Pub. L. 109–435 sub- stituted ‘‘Postal Regulatory Commission’’ for ‘‘Postal Rate Commission’’. 1999—Subsec. (y). Pub. L. 106–151 added subsec. (y). 1998—Subsec. (e)(5). Pub. L. 105–221 added par. (5). 1996—Subsec. (m). Pub. L. 104–188 inserted ‘‘In deter- mining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee’s employer shall be an amount equal to— ‘‘(1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and ‘‘(2) an additional amount on account of the tips re- ceived by such employee which amount is equal to the difference between the wage specified in para- graph (1) and the wage in effect under section 206(a)(1) of this title. The additional amount on account of tips may not ex- ceed the value of the tips actually received by an em- ployee.’’, and struck out former penultimate sentence which read as follows: ‘‘In determining the wage of a tipped employee, the amount paid such employee by his employer shall be deemed to be increased on account of tips by an amount determined by the employer, but not by an amount in excess of (1) 45 percent of the applica- ble minimum wage rate during the year beginning April 1, 1990, and (2) 50 percent of the applicable min- imum wage rate after March 31, 1991, except that the amount of the increase on account of tips determined by the employer may not exceed the value of tips actu- ally received by the employee.’’ Pub. L. 104–188 in last sentence substituted ‘‘pre- ceding 2 sentences’’ for ‘‘previous sentence’’ and struck out ‘‘(1)’’ after ‘‘employee unless’’ and ‘‘(2)’’ after ‘‘sub- section, and’’. 1995—Subsec. (e)(2)(A). Pub. L. 104–1 struck out ‘‘leg- islative or’’ before ‘‘judicial branch’’ in cl. (iii) and added cl. (vi). 1989—Subsec. (m). Pub. L. 101–157, § 5, substituted ‘‘in excess of (1) 45 percent of the applicable minimum wage rate during the year beginning April 1, 1990, and (2) 50 percent of the applicable minimum wage rate after March 31, 1991,’’ for ‘‘in excess of 40 per centum of the applicable minimum wage rate,’’. Subsec. (r). Pub. L. 101–157, § 3(d), designated first sen- tence as par. (1), made a separate sentence out of the existing proviso and redesignated cls. (1), (2), and (3) as (A), (B), and (C), respectively, designated second sen- tence as par. (2), in par. (2) as so designated, redesig- nated existing pars. (1), (2), and (3) as subpars. (A), (B), and (C), respectively, and, in subpar. (A) as so redesig- nated, substituted ‘‘school is operated’’ for ‘‘school is public or private or operated’’. Subsec. (s). Pub. L. 101–157, § 3(a), amended subsec. (s) generally, completely revising definition of ‘‘enterprise engaged in commerce or in the production of goods for commerce’’. 1985—Subsec. (e)(1). Pub. L. 99–150, § 4(a)(1), sub- stituted ‘‘paragraphs (2), (3), and (4)’’ for ‘‘paragraphs (2) and (3)’’. Subsec. (e)(2)(C)(ii). Pub. L. 99–150, § 5, struck out ‘‘or’’ at end of subcl. (III), struck out ‘‘who’’ in subcl. (IV) before ‘‘is an’’, substituted ‘‘, or’’ for period at end of subcl. (IV), and added subcl. (V). Subsec. (e)(4). Pub. L. 99–150, § 4(a)(2), added par. (4). 1977—Subsec. (m). Pub. L. 95–151, § 3(b), substituted ‘‘45 per centum’’ for ‘‘50 per centum’’, effective Jan. 1, 1979, and ‘‘40 per centum’’ for ‘‘45 per centum’’, effective Jan. 1, 1980. Subsec. (s). Pub. L. 95–151, § 9(a)–(c), in par. (1) in- serted exception for enterprises comprised exclusively of retail or service establishments and described in par. (2), added par. (2), redesignated former pars. (2) to (5) as (3) to (6), respectively, and in text following par. (6), as so redesignated, inserted provisions relating to cov- erage of retail or service establishments subject to sec- tion 206(a)(1) of this title on June 30, 1978, and provi- sions relating to violations of such coverage require- ments. Subsec. (t). Pub. L. 95–151, § 3(a), substituted ‘‘$30’’ for ‘‘$20’’. 1974—Subsec. (d). Pub. L. 93–259, § 6(a)(1), redefined ‘‘employer’’ to include a public agency and struck out text which excluded from such term the United States or any State or political subdivision of a State (except with respect to employees of a State, or a political sub- division thereof, employed (1) in a hospital, institution, or school referred to in last sentence of subsec. (r) of this section, or (2) in the operation of a railway or car- rier referred to in such sentence). Subsec. (e). Pub. L. 93–259, § 6(a)(2), in revising defini- tion of ‘‘employee’’, incorporated existing introductory text in provisions designated as par. (1), inserting ex- ception provision; added par. (2); incorporated existing Page 67 TITLE 29—LABOR § 203 cl. (1) in provisions designated as par. (3); and struck out former cl. (2) excepting from ‘‘employee’’, ‘‘any in- dividual who is employed by an employer engaged in agriculture if such individual (A) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and gen- erally recognized as having been, paid on a piece rate basis in the region of employment, (B) commutes daily from his permanent residence to the farm on which he is so employed, and (C) has been engaged in agriculture less than thirteen weeks during the preceding calendar year’’. Subsec. (h). Pub. L. 93–259, § 6(a)(3), substituted ‘‘other activity, or branch or group thereof’’ for ‘‘branch thereof, or group of industries’’. Subsec. (m). Pub. L. 93–259, § 13(e), substituted in pro- vision respecting wage of tipped employee ‘‘the amount of the increase on account of tips determined by the employer may not exceed the value of tips actually re- ceived by the employee’’ for ‘‘in the case of an em- ployee who (either himself or acting through his rep- resentative) shows to the satisfaction of the Secretary that the actual amount of tips received by him was less than the amount determined by the employer as the amount by which the wage paid him was deemed to be increased under this sentence, the amount paid such employee by his employer shall be deemed to have been increased by such lesser amount’’ and inserted ‘‘The previous sentence shall not apply with respect to any tipped employee unless (1) such employee has been in- formed by the employer of the provisions of this sub- section, and (2) all tips received by such employee have been retained by the employee, except that this sub- section shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.’’ Subsec. (r)(3). Pub. L. 93–259, § 6(a)(4), added par. (3). Subsec. (s). Pub. L. 93–259, § 6(a)(5), in first sentence substituted preceding par. (1) ‘‘or employees handling, selling, or otherwise working on goods or materials’’ for ‘‘including employees handling, selling, or other- wise working on goods’’ and added par. (5), and inserted third sentence deeming employees of an enterprise which is a public agency to be employees engaged in commerce, or in production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or pro- duced for commerce. Subsec. (x). Pub. L. 93–259, § 6(a)(6), added subsec. (x). 1972—Subsecs. (r)(1), (s)(4). Pub. L. 92–318, § 906(b)(2), (3), inserted reference to a preschool. 1966—Subsec. (d). Pub. L. 89–601, § 102(b), expanded def- inition of employer to include a State or a political subdivision thereof with respect to employees in a hos- pital, institution, or school referred to in last sentence of subsec. (r) of this section, or in the operation of a railway or carrier referred to in such sentence. Subsec. (e). Pub. L. 89–601, § 103(a), excluded from defi- nition of ‘‘employee,’’ when that term is used in defini- tion of ‘‘man-day,’’ any agricultural employee who is the parent, spouse, child, or other member of his em- ployer’s immediate family and any agricultural hand harvest laborer, paid on a piece rate basis, who com- mutes daily from his permanent residence to the farm on which he is so employed, and who has been employed in agriculture less than 13 weeks during the preceding calendar year. Subsec. (m). Pub. L. 89–601, § 101(a), inserted provi- sions for determining the wage of a tipped employee. Subsec. (n). Pub. L. 89–601, § 215(a), struck out ‘‘, except as used in subsection (s)(1),’’ before ‘‘shall not’’. Subsec. (r). Pub. L. 89–601, § 102(a), extended activities performed for a business purpose to include activities in the operation of hospitals, institutions for the sick, aged, or mentally ill or defective, schools for the handi- capped, elementary and secondary schools, institutions of higher learning, or street, suburban, or interurban electric railway or local trolley or motorbus carriers if subject to regulation by a State or local agency regard- less of whether public or private or whether operated for profit or not for profit. Subsec. (s). Pub. L. 89–601, § 102(c), removed gross an- nual business level tests of $1,000,000 for retail and serv- ice enterprises, street, suburban, or interurban electric railways or local trolley or motorbus carriers, and brought within the coverage of the gross annual busi- ness test all enterprises having employees engaged in commerce in the production of goods for commerce, in- cluding employees handling, selling, or otherwise work- ing on goods that have been moved in or produced for commerce, lowered the minimum gross annual volume test for covered enterprises from $1,000,000 to $500,000 for the period from Feb. 1, 1967, through Jan. 31, 1969, and to $250,000 for the period after Jan. 31, 1969, re- tained the $250,000 annual gross volume test for cov- erage of gasoline service establishments, and expanded coverage to include laundering or cleaning services, construction or reconstruction activities, or operation of hospitals, certain institutions for the care of the sick, aged, or mentally ill, certain special schools, and institutions of higher learning regardless of annual gross volume. Subsec. (t). Pub. L. 89–601, § 101(b), added subsec. (t). Subsec. (u). Pub. L. 89–601, § 103(b), added subsec. (u). Subsecs. (v), (w). Pub. L. 89–601, § 102(d), added sub- secs. (v) and (w). 1961—Subsec. (m). Pub. L. 87–30, § 2(a), provided for ex- clusion from wages under a collective-bargaining agree- ment the cost of board, lodging, or other facilities and authorized the Secretary to determine the fair value of board, lodging, or other facilities for defined classes of employees in defined areas to be used in lieu of actual cost. Subsec. (n). Pub. L. 87–30, § 2(b), inserted ‘‘, except as used in subsection (s)(1),’’ before ‘‘shall not’’. Subsecs. (p) to (s). Pub. L. 87–30, § 2(c), added subsecs. (p) to (s). 1949—Subsec. (b). Act Oct. 26, 1949, § 3(a), substituted ‘‘between’’ for ‘‘from’’ after ‘‘States or’’, and ‘‘and’’ for ‘‘to’’ before ‘‘any place’’. Subsec. (j). Act Oct. 26, 1949, § 3(b), inserted ‘‘closely related’’ before ‘‘process’’ and substituted ‘‘directly es- sential’’ for ‘‘necessary’’ after ‘‘occupation’’. Subsec. (l)(1). Act Oct. 26, 1949, § 3(c), included paren- tal employment of a child under 16 years of age in an occupation found by the Secretary of Labor to be haz- ardous for children between the ages of 16 and 18 years, in definition of oppressive child labor. Subsecs. (n), (o). Act Oct. 26, 1949, § 3(d), added sub- secs. (n) and (o). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Government Publishing Office’’ substituted for ‘‘Government Printing Office’’ in subsec. (e)(2)(A)(vi) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents. EFFECTIVE DATE OF 1989 AMENDMENT Pub. L. 101–157, § 3(e), Nov. 17, 1989, 103 Stat. 939, pro- vided that: ‘‘The amendments made by this section [amending this section and section 213 of this title] shall become effective on April 1, 1990.’’ Pub. L. 101–157, § 5, Nov. 17, 1989, 103 Stat. 941, pro- vided that the amendment made by that section is ef- fective Apr. 1, 1990. EFFECTIVE DATE OF 1985 AMENDMENT; PROMULGATION OF REGULATIONS Pub. L. 99–150, § 6, Nov. 13, 1985, 99 Stat. 790, provided that: ‘‘The amendments made by this Act [amending this section and sections 207 and 211 of this title and en- acting provisions set out as notes under this section and sections 201, 207, 215, and 216 of this title] shall take effect April 15, 1986. The Secretary of Labor shall before such date promulgate such regulations as may be re- quired to implement such amendments.’’ Page 68 TITLE 29—LABOR § 203 EFFECTIVE DATE OF 1977 AMENDMENT Pub. L. 95–151, § 3(a), Nov. 1, 1977, 91 Stat. 1249, pro- vided that the amendment made by that section is ef- fective Jan. 1, 1978. Pub. L. 95–151, § 3(b)(1), Nov. 1, 1977, 91 Stat. 1249, pro- vided that the amendment made by that section, reduc- ing the maximum percentage of the minimum wage used in determining tips as wages from 50 to 45 per cen- tum, is effective Jan. 1, 1979. Pub. L. 95–151, § 3(b)(2), Nov. 1, 1977, 91 Stat. 1249, pro- vided that the amendment made by that section, reduc- ing the maximum percentage of the minimum wage used in determining tips as wages from 45 to 40 per cen- tum, is effective Jan. 1, 1980. Pub. L. 95–151, § 15(a), (b), Nov. 1, 1977, 91 Stat. 1253, provided that: ‘‘(a) Except as provided in sections 3, 14, and sub- section (b) of this section, the amendments made by this Act [amending sections 206, 208, 213, and 216 of this title and enacting provisions set out as a note under section 204 of this title] shall take effect January 1, 1978. ‘‘(b) The amendments made by sections 8, 9, 11, 12, and 13 [amending this section and sections 213 and 214 of this title] shall take effect on the date of the enact- ment of this Act [Nov. 1, 1977].’’ EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–259 effective May 1, 1974, see section 29(a) of Pub. L. 93–259, set out as a note under section 202 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Pub. L. 89–601, title VI, § 602, Sept. 23, 1966, 80 Stat. 844, provided in part that: ‘‘Except as otherwise pro- vided in this Act, the amendments made by this Act [amending this section and sections 206, 207, 213, 214, 216, 218, and 255 of this title] shall take effect on Feb- ruary 1, 1967.’’ EFFECTIVE DATE OF 1961 AMENDMENT Pub. L. 87–30, § 14, May 5, 1961, 75 Stat. 75, provided that: ‘‘The amendments made by this Act [amending this section and sections 204 to 208, 212 to 214, 216, and 217 of this title] shall take effect upon the expiration of one hundred and twenty days after the date of its en- actment [May 5, 1961], except as otherwise provided in such amendments and except that the authority to pro- mulgate necessary rules, regulations, or orders with re- gard to amendments made by this Act, under the Fair Labor Standards Act of 1938 and amendments thereto [this chapter], including amendments made by this Act, may be exercised by the Secretary on and after the date of enactment of this Act [May 5, 1961].’’ EFFECTIVE DATE OF 1949 AMENDMENT Amendment by act Oct. 26, 1949, effective ninety days after Oct. 26, 1949, see section 16(a) of act Oct. 26, 1949, set out as a note under section 202 of this title. EFFECT ON REGULATIONS Pub. L. 115–141, div. S, title XII, § 1201(c), Mar. 23, 2018, 132 Stat. 1149, provided that: ‘‘The portions of the final rule promulgated by the Department of Labor entitled ‘Updating Regulations Issued Under the Fair Labor Standards Act’ (76 Fed. Reg. 18832 (April 5, 2011)) that revised sections 531.52, 531.54, and 531.59 of title 29, Code of Federal Regulations (76 Fed. Reg. 18854–18856) and that are not addressed by section 3(m) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(m)) (as such section was in effect on April 5, 2011), shall have no fur- ther force or effect until any future action taken by the Administrator of the Wage and Hour Division of the Department of Labor.’’ CONSTRUCTION OF 1999 AMENDMENT Pub. L. 106–151, § 2, Dec. 9, 1999, 113 Stat. 1731, provided that: ‘‘The amendment made by section 1 [amending this section] shall not be construed to reduce or sub- stitute for compensation standards: (1) contained in any existing or future agreement or memorandum of understanding reached through collective bargaining by a bona fide representative of employees in accord- ance with the laws of a State or political subdivision of a State; and (2) which result in compensation greater than the compensation available to employees under the overtime exemption under section 7(k) of the Fair Labor Standards Act of 1938 [29 U.S.C. 207(k)].’’ PRESERVATION OF COVERAGE Pub. L. 101–157, § 3(b), Nov. 17, 1989, 103 Stat. 939, pro- vided that: ‘‘(1) IN GENERAL.—Any enterprise that on March 31, 1990, was subject to section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) and that be- cause of the amendment made by subsection (a) [amending this section] is not subject to such section shall— ‘‘(A) pay its employees not less than the minimum wage in effect under such section on March 31, 1990; ‘‘(B) pay its employees in accordance with section 7 of such Act (29 U.S.C. 207); and ‘‘(C) remain subject to section 12 of such Act (29 U.S.C. 212). ‘‘(2) VIOLATIONS.—A violation of paragraph (1) shall be considered a violation of section 6, 7, or 12 of the Fair Labor Standards Act of 1938 [29 U.S.C. 206, 207, 212], as the case may be.’’ VOLUNTEERS; PROMULGATION OF REGULATIONS Pub. L. 99–150, § 4(b), Nov. 13, 1985, 99 Stat. 790, pro- vided that: ‘‘Not later than March 15, 1986, the Sec- retary of Labor shall issue regulations to carry out paragraph (4) of section 3(e) (as amended by subsection (a) of this section) [29 U.S.C. 203(e)(4)].’’ PRACTICE OF PUBLIC AGENCY IN TREATING CERTAIN IN- DIVIDUALS AS VOLUNTEERS PRIOR TO APRIL 15, 1986; LIABILITY Pub. L. 99–150, § 4(c), Nov. 13, 1985, 99 Stat. 790, pro- vided that: ‘‘If, before April 15, 1986, the practice of a public agency was to treat certain individuals as volun- teers, such individuals shall until April 15, 1986, be con- sidered, for purposes of the Fair Labor Standards Act of 1938 [this chapter], as volunteers and not as employees. No public agency which is a State, a political subdivi- sion of a State, or an interstate governmental agency shall be liable for a violation of section 6 [29 U.S.C. 206] occurring before April 15, 1986, with respect to services deemed by that agency to have been performed for it by an individual on a voluntary basis.’’ STATUS OF BAGGERS AT COMMISSARY OF MILITARY DEPARTMENT Pub. L. 95–485, title VIII, § 819, Oct. 20, 1978, 92 Stat. 1626, provided that: ‘‘Notwithstanding any other provi- sion of law, an individual who performs bagger or car- ryout service for patrons of a commissary of a military department may not be considered to be an employee for purposes of the Fair Labor Standards Act of 1938 [this chapter] by virtue of such service if the sole com- pensation of such individual for such service is derived from tips.’’ ADMINISTRATIVE ACTION BY SECRETARY OF LABOR WITH REGARD TO IMPLEMENTATION OF FAIR LABOR STAND- ARDS AMENDMENTS OF 1977 Pub. L. 95–151, § 15(c), Nov. 1, 1977, 91 Stat. 1253, pro- vided that: ‘‘On and after the date of the enactment of this Act [Nov. 1, 1977], the Secretary of Labor shall take such administrative action as may be necessary for the implementation of the amendments made by this Act [See Short Title of 1977 Amendment note set out under section 201 of this title].’’ RULES, REGULATIONS, AND ORDERS PROMULGATED WITH REGARD TO 1966 AMENDMENTS Pub. L. 89–601, title VI, § 602, Sept. 23, 1966, 80 Stat. 844, provided in part that: ‘‘On and after the date of the Page 69 TITLE 29—LABOR § 204 enactment of this Act [Sept. 23, 1966] the Secretary is authorized to promulgate necessary rules, regulations, or orders with regard to the amendments made by this Act [see Short Title of 1966 Amendment note set out under section 201 of this title].’’ Executive Documents TRANSFER OF FUNCTIONS In subsec. (l), ‘‘Secretary of Labor’’ substituted for ‘‘Chief of the Children’s Bureau in the Department of Labor’’ and for ‘‘Chief of the Children’s Bureau’’ pursu- ant to Reorg. Plan No. 2 of 1946, § 1(b), eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095, set out in the Appendix to Title 5, Government Organization and Employees, which transferred functions of Children’s Bureau and its Chief under sections 201 to 216 and 217 to 219 of this title to Secretary of Labor to be performed under his direction and control by such officers and employees of Department of Labor as he designates. § 204. Administration (a) Creation of Wage and Hour Division in De- partment of Labor; Administrator There is created in the Department of Labor a Wage and Hour Division which shall be under the direction of an Administrator, to be known as the Administrator of the Wage and Hour Divi- sion (in this chapter referred to as the ‘‘Admin- istrator’’). The Administrator shall be appointed by the President, by and with the advice and consent of the Senate. (b) Appointment, selection, classification, and promotion of employees by Administrator The Administrator may, subject to the civil- service laws, appoint such employees as he deems necessary to carry out his functions and duties under this chapter and shall fix their compensation in accordance with chapter 51 and subchapter III of chapter 53 of title 5. The Ad- ministrator may establish and utilize such re- gional, local, or other agencies, and utilize such voluntary and uncompensated services, as may from time to time be needed. Attorneys ap- pointed under this section may appear for and represent the Administrator in any litigation, but all such litigation shall be subject to the di- rection and control of the Attorney General. In the appointment, selection, classification, and promotion of officers and employees of the Ad- ministrator, no political test or qualification shall be permitted or given consideration, but all such appointments and promotions shall be given and made on the basis of merit and effi- ciency. (c) Principal office of Administrator; jurisdiction The principal office of the Administrator shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place. (d) Biennial report to Congress; studies of ex- emptions to hour and wage provisions and means to prevent curtailment of employment opportunities (1) The Secretary shall submit biennially in January a report to the Congress covering his activities for the preceding two years and in- cluding such information, data, and rec- ommendations for further legislation in connec- tion with the matters covered by this chapter as he may find advisable. Such report shall contain an evaluation and appraisal by the Secretary of the minimum wages and overtime coverage es- tablished by this chapter, together with his rec- ommendations to the Congress. In making such evaluation and appraisal, the Secretary shall take into consideration any changes which may have occurred in the cost of living and in pro- ductivity and the level of wages in manufac- turing, the ability of employers to absorb wage increases, and such other factors as he may deem pertinent. Such report shall also include a summary of the special certificates issued under section 214(b) of this title. (2) The Secretary shall conduct studies on the justification or lack thereof for each of the spe- cial exemptions set forth in section 213 of this title, and the extent to which such exemptions apply to employees of establishments described in subsection (g) of such section and the eco- nomic effects of the application of such exemp- tions to such employees. The Secretary shall submit a report of his findings and recommenda- tions to the Congress with respect to the studies conducted under this paragraph not later than January 1, 1976. (3) The Secretary shall conduct a continuing study on means to prevent curtailment of em- ployment opportunities for manpower groups which have had historically high incidences of unemployment (such as disadvantaged minori- ties, youth, elderly, and such other groups as the Secretary may designate). The first report of the results of such study shall be transmitted to the Congress not later than one year after the effective date of the Fair Labor Standards Amendments of 1974. Subsequent reports on such study shall be transmitted to the Congress at two-year intervals after such effective date. Each such report shall include suggestions re- specting the Secretary’s authority under section 214 of this title. (e) Study of effects of foreign production on un- employment; report to President and Con- gress Whenever the Secretary has reason to believe that in any industry under this chapter the com- petition of foreign producers in United States markets or in markets abroad, or both, has re- sulted, or is likely to result, in increased unem- ployment in the United States, he shall under- take an investigation to gain full information with respect to the matter. If he determines such increased unemployment has in fact re- sulted, or is in fact likely to result, from such competition, he shall make a full and complete report of his findings and determinations to the President and to the Congress: Provided, That he may also include in such report information on the increased employment resulting from addi- tional exports in any industry under this chap- ter as he may determine to be pertinent to such report. (f) Employees of Library of Congress; administra- tion of provisions by Office of Personnel Management The Secretary is authorized to enter into an agreement with the Librarian of Congress with respect to individuals employed in the Library of Congress to provide for the carrying out of