(a) In addition to acting (or omitting to act) in good faith and in
conformity with an administrative regulation, order, ruling, approval,
interpretation, enforcement policy or practice, the employer must also
prove that he actually relied upon it.101
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101 In a colloquy between Senators Thye and Cooper (93 Cong.
Rec. 4451), Senator Cooper pointed out that the purpose of section 9 was
to provide a defense for an employer who pleads and proves, among other
things, that his failure to bring himself under the Act ``grew out of
reliance upon'' the ruling of an agency. See also statement of
Representative Keating, 93 Cong. Rec. 1512; colloquy between
Representatives Keating and Devitt, 93 Cong. Rec. 1515; cf. colloquy
between Senators Donnell and Ball, 93 Cong. Rec. 4372.
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(b) Assume, for example, that an employer failed to pay his
employees in accordance with the overtime provisions of the Fair Labor
Standards Act. After an employee suit has been brought against him,
another employer calls his attention to a letter that had been written
by the Administrator of the Wage and Hour Division, in which the opinion
was expressed that employees of the type employed by the defendant were
exempt from the overtime provisions of the Fair Labor Standards Act. The
defendant had no previous knowledge of this letter. In the pending
employee suit, the court may decide that the opinion of the
Administrator was erroneous and that the plaintiffs should have been
paid in accordance with the overtime provisions of the Fair Labor
Standards Act. Since the employer had no knowledge of the
administrator's interpretation at the time of his violations, his
failure to comply with the overtime provisions could not have been ``in
reliance on'' that interpretation; consequently, he has no defense under
section 9 or section 10 of the Portal Act.
