(a) Section 4 of the Portal Act, quoted above, applies to situations
where an employee, on or after May 14, 1974, has engaged in activities
of the kind described in this section and has not been paid for or on
account of these activities in accordance with the statutory standards
established by the Fair Labor Standards Act.16 Where, in
these circumstances such activities are not compensable by contract,
custom, or practice as described in section 4, this section relieves the
employer from certain liabilities or punishments to which he might
otherwise be subject under the provisions of the Fair Labor Standards
Act.17 The primary Congressional objectives in enacting
section 4 of the Portal Act, as disclosed by the statutory language and
legislative history were:
---------------------------------------------------------------------------
16 The Fair Labor Standards Act, as amended, requires the
payment of the applicable minimum wage for all hours worked and overtime
compensation for all hours in excess of 40 in a workweek at a rate not
less than one and one-half times the employees regular rate of pay,
unless a specific exemption applies.
17 The failure of an employer to compensate employees
subject to the Fair Labor Standards Act in accordance with its minimum
wage and overtime requirements makes him liable to them for the amount
of their unpaid minimum wages and unpaid overtime compensation together
with an additional equal amount (subject to section 11 of the Portal-to-
Portal Act, discussed below in Sec. 790.22) as liquidated damages
(section 16(b) of the Act); and, if his Act or omission is willful,
subjects him to criminal penalties (section 16(a) of the Act). Civil
actions for injunction can be brought by the Administrator (sections
11(a) and 17 of the Act).
---------------------------------------------------------------------------
(1) To minimize uncertainty as to the liabilities of employers which
it was felt might arise in the future if the compensability under the
Fair Labor Standards Act of such preliminary or postliminary activities
should continue to be tested solely by existing
criteria 18 for determining compensable worktime,
independently of contract, custom, or pratice; 19 and
---------------------------------------------------------------------------
18 Employees subject to the minimum and overtime wage
provisions of the Fair Labor Standards Act have been held to be entitled
to compensation in accordance with the statutory standards, regardless
of contrary custom or contract, for all time spent during the workweek
in ``physical or mental exertion (whether burdensome or not), controlled
or required by the employer and pursued necessarily and primarily for
the benefit of the employer and his business'' (Tennessee Coal Iron &
R.R. Co. v. Muscoda Local, 321 U.S. 590, 598), as well as for all time
spent in active or inactive duties which such employees are engaged to
perform (Armour & Co. v. Wantock, 323 U.S. 126, 132-134; Skidmore v.
Swift & Co., 323, U.S. 134, 136-137).
19 Portal Act, section 1: Senate Report, pp. 41, 42, 46-
49; Conference Report, pp. 12, 13; statements of Senator Wiley, 93 Cong.
Rec. 2084, 4269-4270; statements of Senator Donnell, 93 Cong. Rec. 2089,
2121, 2122, 2181, 2182, 2362, 2363; statements of Senator Cooper, 93
Cong. Rec. 2292-2300.
---------------------------------------------------------------------------
(2) To leave in effect, with respect to the workday proper, the
interpretations by the courts and the Administrator of the requirements
of the Fair Labor Standards Act with regard to the compensability of
activities and time to be included in computing hours worked.20
---------------------------------------------------------------------------
20 Senate Report, pp. 46-49; Conference Report, pp. 12, 13;
statements of Senator Donnell, 93 Cong. Rec. 2181, 2182, 2362;
statements of Senator Cooper, 93 Cong. Rec. 2294, 2296, 2297, 2299,
2300; statement of Representative Gwynne, 93 Cong. Rec. 4388; statements
of Senator Wiley, 93 Cong. Rec. 2084, 4269-4270.
---------------------------------------------------------------------------
(b) Under section 4 of the Portal Act, an employer who fails to pay
an employee minimum wages or overtime compensation for or on account of
activities engaged in by such employee is relieved from liability or
punishment therefor if, and only if, such activities meet the following
three tests:
(1) They constitute ``walking, riding, or traveling'' of the kind
described in the statute, or other activities ``preliminary'' or
``postliminary'' to the ``principal activity or activities'' which the
employee is employed to perform; and
(2) They take place before or after the performance of all the
employee's ``principal activities'' in the workday; and
(3) They are not compensable, during the portion of the day when
they are engaged in, by virtue of any contract, custom, or practice of
the kind described in the statute.
(c) It will be observed that section 4 of the Portal Act relieves an
employer of liability or punishment only with respect to activities of
the kind described, which have not been made compensable by a contract
or by a custom or practice (not inconsistent with a contract) at the
place of employment, in effect at the time the activities are performed.
The statute states that ``the employer shall not be so relieved'' if
such activities are so compensable; 21 it does not matter in
such a situation that they are so-called ``portal-to-portal''
activities.22
---------------------------------------------------------------------------
21 Section 4(b) of the Act (quoted in Sec. 790.3).
22 Conference Report, pp. 12, 13; colloquy between
Senators Donnell and Hakes, 93 Cong. Rec. 2181-2182; colloquy between
Senators Cooper and McGrath, 93 Cong. Rec. 2297-2298, cf. colloquy
between Senators Donnell and Hawkes, 93 Cong. Rec. 2179.
Accordingly, an employer who fails to take such activities into account
in paying compensation to an employee who is subject to the Fair Labor
Standards Act is not protected from liability or punishment in either of
the following situations.
(1) Where, at the time such activities are performed there is a
contract, whether written or not, in effect between the employer and the
employee (or the employee's agent or collective-bargaining
representative), and by an express provision of this contract the
activities are to be paid for; 23 or
---------------------------------------------------------------------------
23 Statements of Senator Donnell, 93 Cong. Rec. 2179,
2181, 2182; statements of Senator Cooper, 93 Cong. Rec. 2297, 2298,
2299.
---------------------------------------------------------------------------
(2) Where, at the time such activities are performed, there is in
effect at the place of employment a custom or practice to pay for such
activities, and this custom or practice is not inconsistent with any
applicable contract between such parties.24
---------------------------------------------------------------------------
24 Statements of Senator Donnell, 93 Cong. Rec. 2181, 2182.
In applying these principles, it should be kept in mind that under the
provisions of section 4(c) of the Portal-to-Portal Act, ``preliminary''
or ``postliminary'' activities which take
place outside the workday ``before the morning whistle'' or ``after the
evening whistle'' are, for purposes of the statute, not to be considered
compensable by a contract, custom or practice if such contract, custom
or practice makes them compensable only during some other portion of the
day.25
---------------------------------------------------------------------------
25 Conference Report, pp. 12, 13. See also Sec. 790.12.
---------------------------------------------------------------------------
[12 FR 7655, Nov. 18, 1947, as amended at 35 FR 7383, May 12, 1970]
