As used in this part:
(a) Secretary means the Secretary of Labor.
(b) Administrator means the Administrator of the Wage and Hour
Division, United States Department of Labor.
(c) Finding means a finding made pursuant to section 13(b)(11) of
the Fair Labor Standards Act as provided in this part.
(d) Making local deliveries includes the activities customarily and
regularly performed in the physical transfer, to customers of a business
establishment situated within the rural or urban community or
metropolitan area in which the establishment is located, of goods sold
or otherwise disposed of to such local customers by such establishment.
Included are activities performed by the driver or driver's helpers as
an incident to or in conjunction with making such deliveries, such as
picking up and returning the delivery vehicle at the beginning and end
of the workday, cleaning the vehicle, checking it to see that it is in
operating condition, loading and unloading or assisting in loading or
unloading the goods, and picking up empty containers or other goods from
customers for return to the establishment. Not included in the making of
local deliveries are such transportation as the carriage of passengers;
the transportation of any load of goods that would normally require a
round trip longer than a single workday for delivery and return to the
starting point; any movement of goods which does not accomplish a
transfer of possession from one person to another; transportation of
goods as a part of a process of production; and transportation of goods
within a local community or metropolitan area as an integral part of a
carriage of such goods from a point outside such community or area to a
destination within it, rather than as a part of the activities
customarily performed in making local deliveries, as defined in this
section, in the same manner as deliveries of goods held locally for
local disposition.
(e) Employee employed as a driver or driver's helper making local
deliveries includes any employee who is employed in any workweek:
(1) To drive a delivery vehicle used in making local deliveries, or
(2) To assist the driver of such a vehicle in making such
deliveries, being required to ride on the vehicle to perform such work,
and whose work in making local deliveries, as defined in paragraph (d)
of this section, accounts for at least 80 percent of his hours of work
in such workweek. In making and applying any finding as provided in this
part, no employee shall be considered to be employed as a driver or
driver's helper making local deliveries in any workweek when more than
20 percent of his hours of work results from the performance of duties
other than those included in making such local deliveries.
(f) A plan of compensation on the basis of trip rates or other
delivery payment plan means any plan whereby employees employed as
drivers or drivers' helpers making local deliveries are compensated for
their employment on a basis such that the amount of payment which they
receive is governed in substantial part by a system of wage payments
based on units of work measurement such as numbers of trips taken, miles
driven, stops made, or units of goods delivered (but not including any
plan based solely on the number of hours worked) so that there is a
substantial inducement to employees to minimize the number of hours
worked.
(g) For purposes of determining whether and to what extent a plan of
compensation on the basis of trip rates or other delivery payment plan
has the effect of reducing the weekly hours worked by employees employed
by an employer as drivers or drivers' helpers making local deliveries
pursuant to such plan:
(1) The most recently completed representative period of one year
(Sec. 551.2(c)) or most recent representative annual period
(Sec. 551.5(b)(3)) shall mean a one-year period within which such
employees were so employed on a regular full-time basis by such employer
(or, if such employer has not previously used such plan, by another
employer using the plan under substantially the same conditions, which
period shall include a calendar or fiscal quarter-year ending not more
than four months prior to the date as of which the effect of such plan
is to be considered, together with the three quarter-year periods
immediately preceding such recently completed quarter-year; and
(2) The average weekly hours or average workweek of the full-time
employees so employed during such annual period shall mean the number of
hours obtained by the following computation: (i) All the hours worked
during such annual period by all the full-time employees regularly
employed under the plan shall be totaled; (ii) the number of workweeks
worked by each such employee during such annual period under such plan
shall be computed, and the totals added together; and (iii) the average
weekly hours, taken in the aggregate, of all such employees shall be
computed by dividing the sum resulting from computation (i) by the sum
resulting from computation (ii).
