(a) In the application of the minimum wage and overtime compensation
provisions of the Fair Labor Standards Act to activities of employees on
or after May 14, 1947, the determination of hours worked is affected by
the Portal Act only to the extent stated in section 4(d). This section
requires that:
. . . in determining the time for which an employer employs an
employee with respect to walking, riding, traveling or other preliminary
or postliminary activities described (in section 4(a)) there shall be
counted all that time, but only that time, during which the employee
engages in any such activity which is compensable (under contract,
custom, or practice within the meaning of section 4 (b), (c)).26
26 The full text of section 4 of the Act is set forth in
Sec. 790.3.
This provision is thus limited to the determination of whether time
spent in such ``preliminary'' or ``postliminary'' activities, performed
before or after the employee's ``principal activities'' for the workday
27 must be included or excluded in computing time
worked.28 If time spent in such an activity would be time
worked within the meaning of the Fair Labor Standards Act if the Portal
Act had not been enacted,29 then the question whether it is
to be included or excluded in computing hours worked under the law as
changed by this provision depends on the compensability of the activity
under the relevant contract, custom, or practice applicable to the
employment. Time occupied by such an activity is to be excluded in
computing the time worked if, when the employee is so engaged, the
activity is not compensable by a contract, custom, or practice within
the meaning of section 4; otherwise it must be included as worktime in
calculating minimum or overtime wages due.30 Employers are
not relieved of liability for the payment of minimum wages or overtime
compensation for any time during which an employee engages in such
activities thus compensable by contract, custom, or practice.31
But where, apart from the Portal Act, time spent in such an activity
would not be time worked within the meaning of the Fair Labor Standards
Act, although made compensable by contract, custom, or practice, such
compensability will not make it time worked under section 4(d) of the
Portal Act.
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27 See Sec. 709.6. Section 4(d) makes plain that
subsections (b) and (c) of section 4 likewise apply only to such
activities.
28 Conference Report, p. 13.
29 See footnote 18.
30 See Conference Report, pp. 10, 13.
31 Conference Report, p. 10.
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(b) The operation of section 4(d) may be illustrated by the common
situation of underground miners who spend time in traveling between the
portal of the mine and the working face at the beginning and end of each
workday. Before enactment of the Portal Act, time thus spent constituted
hours worked. Under the law as changed by the Portal Act, if there is a
contract between the employer and the miners calling for payment for all
or a part of this travel, or if there is a custom or practice to the
same effect of the kind described in section 4, the employer is still
required to count as hours worked, for purposes of the Fair Labor
Standards Act, all of the time spent in the travel which is so made
compensable.32 But if there is no such contract, custom, or
practice, such time will be excluded in computing worktime for purposes
of the Act. And under the provisions of section 4(c) of the Portal
Act,33 if a contract, custom, or practice of the kind
described makes such travel compensable only
during the portion of the day before the miners arrive at the working
face and not during the portion of the day when they return from the
working face to the portal of the mine, the only time spent in such
travel which the employer is required to count as hours worked will be
the time spent in traveling from the portal to the working face at the
beginning of the workday.
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32 Cf. colloquies between Senators Donnell and Hawkes, 93
Cong. Rec. 2179, 2181, 2182; colloquy between Senators Ellender and
Cooper, 83 Cong. Rec. 2296-2297; colloquy between Senators McGrath and
Cooper, 93 Cong. Rec. 2297-2298. See also Senate Report, p. 48.
33 See Sec. 790.3 and Conference Report pp. 12, 13. See
also Senate Report, p. 48.
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