(a) Section 4 of the Portal Act does not affect the computation of
hours worked within the ``workday'' proper, roughly described as the
period ``from whistle to whistle,'' and its provisions have nothing to
do with the compensability under the Fair Labor Standards Act of any
activities engaged in by an employee during that period.34
Under the provisions of section 4, one of the conditions that must be
present before ``preliminary'' or ``postliminary'' activities are
excluded from hours worked is that they `occur either prior to the time
on any particular workday at which the employee commences, or subsequent
to the time on any particular workday at which he ceases' the principal
activity or activities which he is employed to perform. Accordingly, to
the extent that activities engaged in by an employee occur after the
employee commences to perform the first principal activity on a
particular workday and before he ceases the performance of the last
principal activity on a particular workday, the provisions of that
section have no application. Periods of time between the commencement of
the employee's first principal activity and the completion of his last
principal activity on any workday must be included in the computation of
hours worked to the same extent as would be required if the Portal Act
had not been enacted.35 The principles for determining hours
worked within the ``workday'' proper will continue to be those
established under the Fair Labor Standards Act without reference to the
Portal Act,36 which is concerned with this question only as
it relates to time spent outside the ``workday'' in activities of the
kind described in section 4.37
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34 The report of the Senate Judiciary Committee states (p.
47), ``Activities of an employee which take place during the workday are
* * * not affected by this section (section 4 of the Portal-to-Portal
Act, as finally enacted) and such activities will continue to be
compensable or not without regard to the provisions of this section.''
35 See Senate Report, pp. 47, 48; Conference Report, p.
12; statement of Senator Wiley, explaining the conference agreement to
the Senate, 93 Cong. Rec. 4269 (also 2084, 2085); statement of
Representative Gwynne, explaining the conference agreement to the House
of Representatives, 93 Cong. Rec. 4388; statements of Senator Cooper, 93
Cong. Rec. 2293-2294, 2296-2300; statements of Senator Donnell, 93 Cong.
Rec. 2181, 2182, 2362.
36 The determinations of hours worked under the Fair
Labor Standards Act, as amended is discussed in part 785 of this
chapter.
37 See statement of Senator Wiley explaining the
conference agreement to the Senate, 93 Cong. Rec. 3269. See also the
discussion in Secs. 790.7 and 790.8.
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(b) ``Workday'' as used in the Portal Act means, in general, the
period between the commencement and completion on the same workday of an
employee's principal activity or activities. It includes all time within
that period whether or not the employee engages in work throughout all
of that period. For example, a rest period or a lunch period is part of
the ``workday'', and section 4 of the Portal Act therefore plays no part
in determining whether such a period, under the particular circumstances
presented, is or is not compensable, or whether it should be included in
the computation of hours worked.38 If an employee is required
to report at the actual place of performance of his principal activity
at a certain specific time, his ``workday'' commences at the time he
reports there for work in accordance with the employer's requirement,
even though through a cause beyond the employee's control, he is not
able to commence performance of his productive activities until a later
time. In such a situation the time spent waiting for work
would be part of the workday,39 and section 4 of the Portal
Act would not affect its inclusion in hours worked for purposes of the
Fair Labor Standards Act.
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38 Senate Report, pp. 47, 48. Cf. statement of Senator
Wiley explaining the conference agreement to the Senate, 93 Cong. Rec.
4269; statement of Senator Donnell, 93 Cong. Rec. 2362; statements of
Senator Cooper, 93 Cong. Rec. 2297, 2298.
39 Colloquy between Senators Cooper and McGrath, 93 Cong.
Rec. 2297, 2298.
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[12 FR 7655, Nov. 18, 1947, as amended at 35 FR 7383, May 12, 1970]
