(a) The ``good faith'' defense is not available to an employer
unless the acts or omissions complained of were ``in conformity with''
the regulation, order, ruling, approval, interpretation, administrative
practice or enforcement policy upon which he relied.94 This
is
true even though the employer erroneously believes he conformed with it
and in good faith relied upon it; actual conformity is necessary.
---------------------------------------------------------------------------
94 Statement of Senator Cooper, 93 Cong. Rec. 4451;
message of the President to Congress on approval of the Act, May 14,
1947, 93 Cong. Rec. 5281.
---------------------------------------------------------------------------
(b) An example of an employer not acting ``in conformity with'' an
administrative regulation, order, ruling, approval, practice, or
enforcement policy is a situation where an employer receives a letter
from the Administrator of the Wage and Hour Division, stating that if
certain specified circumstances and facts regarding the work performed
by the employer's employees exist, the employees are, in his opinion,
exempt from provisions of the Fair Labor Standards Act. One of these
hypothetical circumstances upon which the opinion was based does not
exist regarding these employees, but the employer, erroneously assuming
that this circumstance is irrelevant, relies upon the Administrator's
ruling and fails to compensate the employees in accordance with the Act.
Since he did not act ``in conformity'' with that opinion, he has no
defense under section 9 or 10 of the Portal Act.
(c) As a further example of the requirement of conformity, reference
is made to the illustration given in Sec. 790.13(b), where an employer,
who had a contract with the X Federal Agency covering the period from
January 1, 1947 to January 1, 1948, received an opinion from the agency
that employees working on the contract were not covered by the Fair
Labor Standards Act. Assume (1) that the X Agency's opinion was confined
solely and exclusively to activities performed under the particular
contract held by the employer with the agency and made no general
statement regarding the status under the Act of the employer's employees
while performing other work; and (2) that the employer, erroneously
believing the reasoning used in the agency's opinion also applied to
other and different work performed by his employees, did not compensate
them for such different work, relying upon that opinion. As previously
pointed out, the opinion from the X Agency, if relied on and conformed
with in good faith by the employer, would form the basis of a ``good
faith'' defense for the period prior to May 14, 1947, insofar as the
work performed by the employees on this particular contract with that
agency was concerned. The opinion would not, however, furnish the
employer a defense regarding any other activities of a different nature
performed by his employees, because it was not an opinion concerning
such activities, and insofar as those activities are concerned, the
employer could not act ``in conformity'' with it.
