(a) Where an employee engages in a ``preliminary'' or
``postliminary'' activity of the kind described in section 4(a) of the
Portal Act and this activity is ``compensable * * * by an express
provision of a written or nonwritten contract'' applicable to the
employment, section 4 does not operate to relieve the employer of
liability or punishment under the Fair Labor Standards Act with respect
to such activity,68 and does not relieve the employer of any
obligation he would otherwise have under that Act to include time spent
in such activity in computing hours worked.69
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68 See Sec. 790.4.
69 See Secs. 790.5 and 790.7.
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(b) The word ``compensable,'' is used in subsections (b), (c), and
(d) of section 4 without qualification.70 It is apparent from
these provisions that ``compensable'' as used in the statute, means
compensable in any amount.71
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70 The word is also so used throughout section 2 of the Act
which relates to past claims. See Secs. 790.28-790.25.
71 Cf. Conference Report, pp. 9, 10, 12, 13; message of
the President to the Congress on approval of the Portal-to-Portal Act,
May 14, 1947 (93 Cong. Rec. 5281).
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(c) The phrase ``compensable by an express provision of a written or
non- written contract'' in section 4(b) of the Portal Act offers no
difficulty where a written contract states that compensation shall be
paid for the specific activities in question, naming them in explicit
terms or identifying them through any appropriate language. Such a
provision clearly falls within the statutory description.72
The existence or nonexistence of an express provision making an activity
compensable is more difficult to determine in the case of a nonwritten
contract since there may well be conflicting recollections as to the
exact terms of the agreement. The words ``compensable by an express
provision'' indicate that both the intent of the parties to contract
with respect to the activity in question and their intent to provide
compensation for the employee's performance of the activity must
satisfactorily appear from the express terms of the agreement.
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72 See colloquy between Senators Donnell and Lodge, 93
Cong. Rec. 2178; colloquies between Senators Donnell and Hawkes, 93
Cong. Rec. 2179, 2181-2182.
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(d) An activity of an employee is not ``compensable by * * * a
written or nonwritten contract'' within the meaning of section 4(b) of
the Portal Act unless the contract making the activity compensable is
one ``between such employee, 72 his agent, or collective-
bargaining representative and his employer.'' 73 Thus, a
provision in a contract between a government agency and the employer,
relating to compensation of the contractor's employees, would not in
itself establish the compensability by ``contract'' of an activity, for
purposes of section 4.
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73 The terms ``employee'' and ``employer'' have the same
meaning as when used in the Fair Labor Standards Act. Portal-to-Portal
Act, section 13(a).
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