29 U.S.C. § 203 — Definitions

submitted 88 years ago by ch. 676 to r/title-29-LABOR · 2,556 words · no verdicts yet

in plain englishAI-generated · not legal advice

This section defines key terms used throughout this wage-and-hour law. It explains who counts as an employer, employee, and employee in agriculture. It also defines wages, tips, hours worked, and child labor rules.

(a) "Person" means an individual, a partnership, an association, a corporation, a business trust, a legal representative, or any organized group of people. (b) "Commerce" means trade, transportation, transmission, or communication between states, or between a state and somewhere outside it. (c) "State" means any U.S. state, the District of Columbia, or any U.S. territory or possession. (d) "Employer" includes anyone acting, directly or indirectly, in the interest of an employer toward an employee, and includes public agencies. It does not include a labor organization (like a union) unless that union is itself acting as an employer — and it doesn't include someone who's just an officer or agent of that union. (e) "Employee": (1) Generally, an "employee" is anyone employed by an employer, except as explained below. (2) For someone employed by a public agency: (A) It includes federal civilian employees in the military departments, in any executive agency, in a judicial-branch unit with competitive-service jobs, in a nonappropriated fund group under the Armed Forces, in the Library of Congress, or at the Government Publishing Office. (B) It includes anyone employed by the U.S. Postal Service or the Postal Regulatory Commission. (C) It includes anyone employed by a state, a subdivision of a state, or an interstate government agency — except people who aren't covered by that government's civil service laws and who also either: hold public elected office there; were chosen by an elected official to be personal staff; were appointed by an elected official to a policymaking job; are close advisers to an elected official on the legal powers of that office; or work in a legislature (other than at its library). (3) For the man-day rule in subsection (u), "employee" does not include the employer's parent, spouse, child, or other immediate family member, if the employer is in agriculture. (4)(A) "Employee" does not include someone who volunteers for a state, local, or interstate government agency, as long as: (i) they get no pay, or only expenses, reasonable benefits, or a small fee; and (ii) the volunteer work is different from the paid job they normally do for that agency. (B) A government employee from one state or local agency may volunteer for a different state, local, or interstate agency — including one with a mutual-aid deal with their own employer. (5) "Employee" does not include people who volunteer only for humanitarian reasons at private nonprofit food banks, in exchange for groceries from the food bank. (f) "Agriculture" includes all kinds of farming — tilling soil, dairy farming, growing crops (including farm commodities defined elsewhere in the law), and raising livestock, bees, fur animals, or poultry. It also includes forestry or lumbering done by a farmer, or on a farm, alongside farming — including getting products ready for market, or delivering them to storage, market, or a shipper. (g) "Employ" includes letting or allowing someone to work — not just directly hiring them. (h) "Industry" means a trade, business, or other activity — or a branch or group of them — where people work for pay. (i) "Goods" means goods (including ships and marine equipment), wares, products, or any article of commerce, or any part of one — but not goods that have already reached the hands of the final consumer, unless that consumer is themself a producer, manufacturer, or processor. (j) "Produced" means made, manufactured, mined, handled, or otherwise worked on in any state. An employee counts as having helped produce goods if they worked on producing, manufacturing, mining, handling, or transporting them — or did any closely related job essential to making them — in any state. (k) "Sale" or "sell" includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other way of disposing of goods. (l) "Oppressive child labor" means either of these: (1) An employer (other than a parent, or someone standing in for a parent, employing their own child or a child in their custody who is under 16) employs someone under 16 in any job — except that a parent-employer still can't use their under-16 child in manufacturing, mining, or a job the Secretary of Labor has found especially hazardous or harmful for 16-to-18-year-olds. (2) An employer employs someone between 16 and 18 in a job the Secretary of Labor has officially declared especially hazardous or harmful for that age group. But it's not "oppressive child labor" if the employer has on file a valid certificate, issued under Labor Department rules, saying the worker is old enough. And the Secretary of Labor must set rules saying that employing 14-to-16-year-olds outside manufacturing and mining isn't oppressive child labor, as long as the work doesn't interfere with school, health, or well-being. (m) "Wage": (1) A worker's "wage" includes the reasonable value of board, lodging, or other facilities the employer regularly gives employees — as long as a union contract doesn't say to leave that value out. The Secretary can set the fair value of these facilities for groups of workers or areas, based on average cost or value, and that figure is used instead of actual cost. (2)(A) For a tipped employee, the wage the employer must pay equals: (i) a cash wage that can't be less than the cash wage required as of August 20, 1996, plus (ii) a "tip credit" — the gap between that cash wage and the regular minimum wage under section 206(a)(1) — but the tip credit can't be more than the tips the employee actually got. This only applies if the employer told the employee about this rule, and the employee kept all their tips — except that employees can still be required to pool tips together. (B) An employer can never keep any part of an employee's tips for itself, including letting managers or supervisors keep tips — whether or not the employer uses the tip credit. (n) "Resale" doesn't include selling goods that will be used to build, repair, or maintain a home or farm building — as long as the sale counts as a genuine retail sale in that industry. (o) Hours worked — When figuring out an employee's working hours under sections 206 and 207, time spent changing clothes or washing up at the start or end of a shift doesn't count, if a union contract (by its terms or by custom) already excluded that time. (p) "American vessel" includes any ship registered or numbered under U.S. law. (q) "Secretary" means the Secretary of Labor. (r) "Enterprise": (1) An "enterprise" means related activities run by one or more people for one common business purpose — whether at one place or many, and whether run through one or several organizational units, including departments run under a lease. It doesn't include work an independent contractor does for the enterprise. A retail or service business that's independently owned doesn't lose its separate status just because it: (A) agrees to sell only certain brands, (B) joins others in its industry to buy supplies together, (C) gets exclusive rights to sell a brand in an area, or leases space from someone who also leases to other retailers. (2) Certain activities always count as done "for a business purpose": (A) running a hospital, a place caring for sick, elderly, or mentally ill or disabled people who live there, a school for disabled or gifted children, or a preschool, K-12 school, or college — whether or not it's for-profit; (B) running a state- or locally regulated streetcar, trolley, or local bus line; or (C) anything a public agency does. (s) "Enterprise engaged in commerce or in the production of goods for commerce": (1) This means an enterprise that either: (A) has employees engaged in commerce or making goods for commerce (or handling goods that moved through commerce), and does at least $500,000 a year in sales (not counting certain retail excise taxes); (B) runs a hospital, care facility, special-needs school, or preschool-through-college school (for-profit or not); or (C) is a public agency's activity. (2) A business whose only regular workers are the owner and their immediate family doesn't count as this kind of enterprise, and its sales don't count toward any other enterprise's $500,000 total. (t) "Tipped employee" means an employee who regularly gets more than $30 a month in tips. (u) "Man-day" means any day an employee does farm labor for at least one hour. (v) "Elementary school" means a day or residential school providing elementary education, as defined by state law. (w) "Secondary school" means a day or residential school providing secondary education, as defined by state law. (x) "Public agency" means the U.S. government; a state or local government; any federal, state, or local agency (including the Postal Service and Postal Regulatory Commission); or any interstate government agency. (y) "Employee in fire protection activities" means a firefighter, paramedic, EMT, rescue worker, ambulance worker, or hazardous-materials worker who: (1) is trained in putting out fires, has legal authority and responsibility to fight fires, and works for a municipal, county, district, or state fire department; and (2) works to prevent, control, or put out fires, or responds to emergencies threatening life, property, or the environment.

the actual law source: uscode.house.gov ↗public domain

As used in this chapter—

(a)

“Person” means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.

(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 Territory or possession of the United States.

(d)

“Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.

(e)

(1)

Except as provided in paragraphs (2), (3), and (4), the term “employee” means any individual 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 Government of the United States—

(i)

as a civilian in the military departments (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 instrumentality 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 Regulatory Commission; and

(C)

any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual—

(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 constitutional 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 individual 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 services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—

(i)

the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

(ii)

such services are not the same type of services which the individual is employed to perform for such public agency.

(B)

An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement.

(5)

The term “employee” does not include individuals 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 commodities (including commodities defined as agricultural commodities in section 1141j(g) 2 of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

(g)

“Employ” includes to suffer or permit to work.

(h)

“Industry” means a trade, business, industry, or other activity, or branch or group thereof, in which individuals are gainfully employed.

(i)

“Goods” means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.

(j)

“Produced” means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.

(k)

“Sale” or “sell” includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.

(l)

“Oppressive child labor” means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of 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 between such ages or detrimental to their health or well-being; but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child-labor age. The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen 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 Administrator, to the employer of furnishing such employee with board, lodging, or other facilities, 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 agreement applicable to the particular employee: Provided further, That the Secretary is authorized to determine the fair value of such board, lodging, or other facilities for defined classes of employees 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 measure 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 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 received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except 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 allowing 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 purposes 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 measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement 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 activities 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 corporate or other organizational units including departments of an establishment operated through leasing arrangements, but shall not include the related activities performed for such enterprise by an independent contractor. Within the meaning of this subsection, a retail or service 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 arrangement, which includes, but is not necessarily limited 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 collective purchasing, or (C) that it will have the exclusive right to sell the goods or use the brand name of a manufacturer, distributor, or advertiser 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 physically handicapped or gifted children, a preschool, 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 railway, or local trolley or motorbus carrier, if the rates and services of such railway or carrier 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 otherwise 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 volume 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 defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool, elementary or secondary school, or an institution 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 regular 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 establishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this subsection.

(t)

“Tipped employee” means any employee engaged in an occupation in which he customarily 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 residential school which provides elementary education, as determined under State law.

(w)

“Secondary school” means a day or residential school which provides secondary education, as determined under State law.

(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 Postal 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, rescue 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 department of a municipality, county, fire district, or State; and

(2)

is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

Source credit: (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.)

history & why it existsrecord from the source credit

1938Enacted · Act of June 25, 1938, ch. 676 · 52 Stat. 1060
1949Amended · Act of Oct. 26, 1949, ch. 736 · 63 Stat. 911
1961Amended · Pub. L. 87-30 · 75 Stat. 65
1966Amended · Pub. L. 89-601 · 80 Stat. 830
1972Amended · Pub. L. 92-318 · 86 Stat. 375
1974Amended · Pub. L. 93-259 · 88 Stat. 58, 64
1977Amended · Pub. L. 95-151 · 91 Stat. 1249, 1251
1985Amended · Pub. L. 99-150 · 99 Stat. 790
1989Amended · Pub. L. 101-157 · 103 Stat. 938, 939, 941
1995Amended · Pub. L. 104-1 · 109 Stat. 10
1996Amended · Pub. L. 104-188 · 110 Stat. 1929
1998Amended · Pub. L. 105-221 · 112 Stat. 1248
1999Amended · Pub. L. 106-151 · 113 Stat. 1731
2006Amended · Pub. L. 109-435 · 120 Stat. 3242
2014Amended · Pub. L. 113-235 · 128 Stat. 2537
2018Amended · Pub. L. 115-141 · 132 Stat. 1148

A history note hasn’t been published yet. The record shows enactment by ch. 676 on 1938-06-25.

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