The determination of the number of employees employed in the named
operations is to be made on an occupational and a workweek basis. Thus
the exemption will be available in one
workweek when eight or less employees are employed in the exempt
operations and not in another workweek when more than that number are so
employed. For a discussion of the term ``workweek'' see part 778 of this
chapter. The exemption will not be defeated, however, if one or more of
the eight employees so engaged is replaced during the workweek, for
example, by reason of illness. But if additional employees are employed
during the workweek in the named operations, even if they work on a
different shift, the exemption would no longer be available if the total
number exceed eight. Similarly, all of an employer's employees employed
in any workweek in the named operations must be counted in the eight
regardless of where the work is performed or how it is divided. Thus if
an employer employs four employees in felling timber and preparing logs
at one location and five at another location in those operations, the
exemption would not be available. Similarly, if he employs six employees
in such operations and three other employees in transportation work as
discussed in Sec. 788.11, the exemption could not apply. Under such
circumstances he would be employing more than eight employees in the
named operations. The fact that some of these employees may not be
engaged in commerce or the production of goods for commerce or may be
engaged in other exempt operations will not affect these conclusions
(Woods Lumber Co. v. Tobin, 199 F. 2d 455 (C.A. 5)). Except for
replacements, therefore, all of an employer's employees employed in the
named operations in a workweek must be counted, regardless of where they
perform their work or in which of the named operations or combinations
of such operations they are employed. The length of time an employee is
employed in the named operations during a workweek is also immaterial
for the purpose of applying the numerical limitation. Thus, even if an
employee would not himself be exempt because he is engaged substantially
in nonexempt work (see Sec. 788.17), nevertheless, if, as a regular part
of his duties, he is also engaged in the operations named in the
exemption, he must be counted in determining whether the eight employee
limitation is satisfied.
