(a) Section 12(a) excludes from the channels of interstate commerce
goods produced in an establishment ``in or about'' which oppressive
child labor has been employed. In a great many situations it is
obviously easy to determine whether a minor is employed ``in'' an
establishment. Thus, he is so employed where he performs his
occupational duties on the premises of the producing establishment.
Furthermore, a minor is also considered as employed in an establishment
where he performs most of his duties off the premises but is regularly
required to perform certain occupational duties in the establishment,
such as loading or unloading a truck, checking in or out, or washing
windows. This is true in such cases even though the minor is employed by
someone other than the owner or operator of the particular
establishment. On the other hand, a minor is not considered to be
employed in an establishment other than his employer's merely because
such establishment is visited by him for brief periods of time and for
the sole purpose of picking up or delivering a message or other small
article.
(b) If, in the light of the statements in paragraph (a) of this
section, the minor cannot be considered as employed in the
establishment, he may, nevertherless, be employed ``about'' it if he
performs his occupational duties sufficiently close in proximity to the
actual place of production to fall within the commonly understood
meaning of the term ``about.'' This would be true in a situation where
the foregoing proximity test is met and the occupation of the minor is
directly related to the activities carried on in the producing
establishment, in this connection, occupations are considered
sufficiently related to the activities carried on in the producing
establishment to meet the second test above at least where the requisite
relationship to production of goods exists within the meaning of section
3(j) of the Act. 20 By way of example, a driver's helper
employed to assist in the distribution of the products of a bottling
company who regularly boards the delivery truck immediately outside the
premises of the bottling plant is considered employed ``in or about''
such establishment, without
regard to whether he ever enters the plant itself. On the other hand,
employees working entirely within one establishment are not considered
to be employed ``in or about'' a wholly different establishment
occupying separate premises and operated by another employer. This would
be true even though the two establishments are contiguous. But in other
situations the distance between the producing establishment and the
minor's place of employment may be a decisive factor. Thus, a minor
employed in clearing rights-of-way for power lines many miles away from
the power plant cannot well be said to be employed ``in or about'' such
establishment. In view of the great variety of establishments and
employments, however, no hard and fast rule can be laid down which will
once and for all distinguish between employments that are ``about'' an
establishment and those that are not. Therefore, each case must be
determined on its own merits. In determining whether a particular
employment is ``about'' an establishment, consideration of the following
factors should prove helpful: (1) Actual distance between the producing
establishment and the minor's place of employment; (2) nature of the
establishment; (3) ownership or control of the premises involved; (4)
nature of the minor's activities in relation to the establishment's
purpose; (5) identity of the minor's employer and the establishment's
owner; (6) extent of control by the producing establishment's owner over
the minor's employment.
---------------------------------------------------------------------------
20 See part 776 (bulletin on coverage of the wage and
hours provisions) of this title.
---------------------------------------------------------------------------
