(a) In general. The same principles for determining coverage under
the Fair Labor Standards Act generally apply to employees in the
building and construction industry. As in other situations, it is the
employee's activities rather than the employer's business which is the
important consideration, and it is immaterial if the employer is an
independent contractor who performs the construction work for or on
behalf of a firm which is engaged in
interstate commerce or in the production of goods for such commerce.
8
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8 Mitchell v. Joyce Agency, 348 U.S. 945, affirming 110 F.
Supp. 918; Fleming v. Sondeck, 132 F. (2d) 77 (C.A. 5), certiorari
denied 318 U.S. 772; Kirschbaum v. Walling, ante; Walling v. McCrady
Construction Co., 156 F. (2d) 932. certiorari denied 329 U.S. 785;
Mitchell v. Brown Engineering Co., 224 F. (2d) 359 (C.A. 8), certiorari
denied 350 U.S. 875; Chambers Construction Co. and L. H. Chambers v.
Mitchell, decided June 5, 1965 (C.A. 8).
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(b) On both covered and non-covered work. If the employee is engaged
in both covered and non-covered work during the workweek he is entitled
to the benefits of the Act for the entire week regardless of the amount
of covered activities which are involved. The covered activities must,
however, be regular or recurring rather than isolated, sporadic or
occasional. 9
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9 See General Coverage Bulletin, Secs. 776.2 and 776.4
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(c) On covered construction projects. All employees who are employed
in connection with construction work which is closely or intimately
related to the functioning of existing instrumentalities and channels of
interstate commerce or facilities for the production of goods for such
commerce are within the scope of the Act. Closely or intimately related
construction work includes the maintenance, repair, reconstruction,
redesigning, improvement, replacement, enlargement or extension of a
covered facility. 10 If the construction project is subject
to the Act, all employees who participate in the integrated effort are
covered, including not only those who are engaged in work at the site of
the construction such as mechanics, laborers, handymen, truckdrivers,
watchmen, guards, timekeepers, inspectors, checkers, surveyors, payroll
workers, and repair men, but also office, clerical, bookkeeping,
auditing, promotional, drafting, engineering, custodial and stock room
employees. 11
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10 Walling v. McCrady Const. Co., 156 F. (2d) 932, certiorari
denied 329 U.S. 785; Chambers Construction Co. and L. H. Chambers v.
Mitchell, decided June 5, 1956 (C.A. 8); Tobin v. Pennington-Winter
Const. Co. ante; Mitchell v. Vollmer & Co., ante.
11 Mitchell v. Brown Engineering Co., ante; Chambers
Construction Co. and L. H. Chambers v. Mitchell, ante; Ritch v. Puget
Sound Bridge & Dredging Co., 156 F. (2d) 334 (C.A. 9).
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(d) On non-covered construction projects. (1) A construction project
maybe purely local and, therefore, not covered, but some individual
employees may nonetheless be covered on independent ground by reason of
their interstate activities. Under the principle that coverage depends
upon the particular activities of the employee and not on the nature of
the business of the employer, individual employees engaged in interstate
activities are covered even though their activities may be performed in
connection with a non-covered construction project. Thus, the Act is
applicable to employees who are regularly engaged in ordering or
procuring materials and equipment from outside the State or receiving,
unloading, checking, watching or guarding such goods while they are
still in transit. For example, laborers on a non-covered construction
project who regularly unload materials and equipment from vehicles or
railroad cars which are transporting such articles from other States are
performing covered work. 12
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12 Clyde v. Broderick, 144 F. (2d) 348 (C.A. 10); Durnil v. J.
E. Dunn Construction Co. 186 F (2d) 27 (C.A. 8), Donahue v. George A.
Fuller Co., 104 F. Supp. 145; Cf. Mitchell v. Royal Baking Co., 219 F.
(2d) 532 (C.A. 5).
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(2) Similarly, employees who regularly use instrumentalities of
commerce, such as the telephone, telegraph and mails for interstate
communication are within the scope of the Act, as are employees who are
regularly engaged in preparing, handling, or otherwise working on goods
which will be sent to other States. This includes the preparation of
plans, orders, estimates, accounts, reports and letters for interstate
transmittal.
