(a) The workweek is to be taken as the standard in determining the
applicability of the Act. 13 Thus, if in any workweek an
employee is engaged in both covered and noncovered work he is entitled
to both the wage and hours benefits of the Act for all the time
worked in that week, unless exempted therefrom by some specific
provision of the Act. The proportion of his time spent by the employee
in each type of work is not material. If he spends any part of the
workweek in covered work he will be considered on exactly the same basis
as if he had engaged exclusively in such work for the entire period.
Accordingly, the total number of hours which he works during the
workweek at both types of work must be compensated for in accordance
with the minimum wage and overtime pay provisions of the Act.
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13 See Gordon's Transports v. Walling, 162 F. 2d 203
(C.A. 6), certiorari denied 332 U.S. 774; Walling v. Fox-Pelletier
Detective Agency, 4 W.H. Cases 452 (W.D. Tenn.), 8 Labor Cases 62,219;
Walling v. Black Diamond Coal Mining Co., 59 F. Supp. 348 (W.D. Ky.);
Fleming v. Knox, 42 F. Supp. 948 (S.D. Ga.); Roberg v. Henry Phipps
Estate, 156 F. 2d 958 (C.A. 2). For a definition of the workweek, see
Sec. 778.2(c) of this chapter.
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(b) It is thus recognized that an employee may be subject to the Act
in one workweek and not in the next. It is likewise true that some
employees of an employer may be subject to the Act and others not. But
the burden of effecting segregation between covered and noncovered work
as between particular workweeks for a given employee or as between
different groups of employees is upon the employer. Where covered work
is being regularly or recurrently performed by his employees, and the
employer seeks to segregate such work and thereby relieve himself of his
obligations under sections 6 and 7 with respect to particular employees
in particular workweeks, he should be prepared to show, and to
demonstrate from his records, that such employees in those workweeks did
not engage in any activities in interstate or foreign commerce or in the
production of goods for such commerce, which would necessarily include a
showing that such employees did not handle or work on goods or materials
shipped in commerce or used in production of goods for commerce, or
engage in any other work closely related and directly essential to
production of goods for commerce. 14 The Division's
experience has indicated that much so-called ``segregation'' does not
satisfy these tests and that many so-called ``segregated'' employees are
in fact engaged in commerce or in the production of goods for commerce.
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14 See Guess v. Montague, 140 F. 2d 500 (C.A. 4).
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