(a) The term ``employ'' is broadly defined in section 3(g) of the
Act to include ``to suffer or permit to work.'' The Act expressly
provides that the term ``employer'' includes ``any person acting
directly or indirectly in the interest of an employer in relation to an
employee''. The nature of an employer-employee relationship is
ordinarily to be determined not solely on the basis of the contractual
relationship between the parties but also in the light of all the facts
and circumstances. Moreover, the terms ``employer'' and ``employ'' as
used in the Act are broader than the common-law concept of employment
and must be interpreted broadly in the light of the mischief to be
corrected. Thus, neither the technical relationship between the parties
nor the fact that the minor is unsupervised or receives no compensation
is controlling in determining whether an employer-employee relationship
exists for purposes of section 12(c) of the Act. However, these are
matters which should be considered along with all other facts and
circumstances surrounding the relationship of the parties in arriving at
such determination. The words ``suffer or permit to work'' include those
who suffer by a failure to hinder and those who permit by acquiescence
in addition to those who employ by oral or written contract. A typical
illustration of employment of oppressive child labor by suffering or
permitting an under-aged minor to work is that of an employer who knows
that his employee is utilizing the services of such a minor as a helper
or substitute in performing his employer's work. If the employer
acquiesces in the practice or fails to exercise his power to hinder it,
he is himself suffering or permitting the helper to work and is,
therefore, employing him, within the meaning of the Act. Where
employment does exist within the meaning of the Act, it must, of course,
be in commerce or in the production of goods for commerce or in an
enterprise engaged in commerce or in the production of goods for
commerce in order for section 12(c) to be applicable.
(b) As previously indicated, the scope of coverage of section 12(c)
of the Act is, in general, coextensive with that of the wage and hours
provisions. The basis for this conclusion is provided by the similarity
in the language used in the respective provisions and by statements
appearing in the legislative history concerning the intended effect of
the addition of section 12(c). Accordingly, it may be generally stated
that employees considered to be within the scope of the phrases ``in
commerce or in the production of goods for commerce'' for purposes of
the wage and hours provisions are also included within the identical
phrases used in section 12(c). To avoid needless repetition, reference
is herein made to the full discussion of principles relating to the
general coverage of the wage and hours provisions contained in parts 776
and 779 of this chapter. In this connection, however, it should be borne
in mind that lack of coverage under the wage and hours provisions or
under section 12(c) does not necessarily preclude the applicability of
section 12(a) of the Act. 26
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26 See Sec. 570.116
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[36 FR 25156, Dec. 29, 1971]
