[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR780.721]



[Page 569]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 780_EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL 

COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT--Table 

of Contents

 

     Subpart H_Employment by Small Country Elevators Within Area of 

   Production; Exemption From Overtime Pay Requirements Under Section 

                                13(b)(14)

 

Sec.  780.721  Employment in the particular workweek as test of exemption.



    The period for determining whether the ``area of production'' 

requirement of section 13(b)(14) is met is prescribed in the regulations 

in part 536 of this chapter. Whether or not an establishment is one 

commonly recognized as a country elevator must be tested by general 

functions and attributes over a representative period of time, as 

previously explained, and requires reexamination for exemption purposes 

only if these change. But insofar as the exemption depends for its 

application on the employment of employees, it applies on a workweek 

basis. An employee employed by the establishment is not exempt in any 

workweek when more than five employees ``are employed in the 

establishment in such operations,'' as previously explained (see 

Sec. Sec.  780.712 through 780.715). Nor is any employee within the 

exemption in a workweek when he is not employed ``by'' the establishment 

within the meaning of section 13(b)(14) (see Sec. Sec.  780.716 through 

780.719). This is in accordance with the general rule that the unit of 

time to be used in determining the application of the Act and its 

exemptions to an employee is the workweek. (See Overnight Motor 

Transportation Co. v. Missel, 316 U.S. Mitchell v. Hunt, 263 F. 2d 913; 

McComb v. Puerto Rico Tobacco Marketing Co-op. Ass'n, 80 F. Supp. 953, 

affirmed 181 F. 2d 697.) A workweek is a fixed and regularly recurring 

interval of seven consecutive 24-hour periods. It may begin at any hour 

of any day set by the employer and need not coincide with the calendar 

week. Once the workweek has been set it commences each succeeding week 

on the same day and at the same hour. Changing the workweek for the 

purpose of escaping the requirements of the Act is not permitted.



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