Notes on 29 U.S.C. § 203 : US Code - Notes

Search Notes on 29 U.S.C. § 203 : US Code - Notes

(June 25, 1938, ch. 676, Sec. 3, 52 Stat. 1060; 1946 Reorg. Plan
No. 2, Sec. 1(b), eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095;
Oct. 26, 1949, ch. 736, Sec. 3, 63 Stat. 911; Pub. L. 87-30, Sec.
2, May 5, 1961, 75 Stat. 65; Pub. L. 89-601, title I, Secs. 101-
103, title II, Sec. 215(a), Sept. 23, 1966, 80 Stat. 830-832, 837;
Pub. L. 92-318, title IX, Sec. 906(b)(2), (3), June 23, 1972, 86
Stat. 375; Pub. L. 93-259, Secs. 6(a), 13(e), Apr. 8, 1974, 88
Stat. 58, 64; Pub. L. 95-151, Secs. 3(a), (b), 9(a)-(c), Nov. 1,
1977, 91 Stat. 1249, 1251; Pub. L. 99-150, Secs. 4(a), 5, Nov. 13,
1985, 99 Stat. 790; Pub. L. 101-157, Secs. 3(a), (d), 5, Nov. 17,
1989, 103 Stat. 938, 939, 941; Pub. L. 104-1, title II, Sec.
203(d), Jan. 23, 1995, 109 Stat. 10; Pub. L. 104-188, [title II],
Sec. 2105(b), Aug. 20, 1996, 110 Stat. 1929; Pub. L. 105-221, Sec.
2, Aug. 7, 1998, 112 Stat. 1248; Pub. L. 106-151, Sec. 1, Dec. 9,
1999, 113 Stat. 1731.)
AMENDMENTS
1999 - Subsec. (y). Pub. L. 106-151 added subsec. (y).
1998 - Subsec. (e)(5). Pub. L. 105-221 added par. (5).
1996 - Subsec. (m). Pub. L. 104-188 inserted "In determining the
wage an employer is required to pay a tipped employee, the amount
paid such employee by the employee's employer shall be an amount
equal to -
"(1) the cash wage paid such employee which for purposes of
such determination shall be not less than the cash wage required
to be paid such an employee on August 20, 1996; and
"(2) an additional amount on account of the tips received by
such employee which amount is equal to the difference between the
wage specified in paragraph (1) and the wage in effect under
section 206(a)(1) of this title.
The additional amount on account of tips may not exceed the value
of the tips actually received by an employee.", and struck out
former penultimate sentence which read as follows: "In determining
the wage of a tipped employee, the amount paid such employee by his
employer shall be deemed to be increased on account of tips by an
amount determined by the employer, but not by an amount in excess
of (1) 45 percent of the applicable minimum wage rate during the
year beginning April 1, 1990, and (2) 50 percent of the applicable
minimum wage rate after March 31, 1991, except that the amount of
the increase on account of tips determined by the employer may not
exceed the value of tips actually received by the employee."
Pub. L. 104-188 in last sentence substituted "preceding 2
sentences" for "previous sentence" and struck out "(1)" after
"employee unless" and "(2)" after "subsection, and".
1995 - Subsec. (e)(2)(A). Pub. L. 104-1 struck out "legislative
or" before "judicial branch" in cl. (iii) and added cl. (vi).
1989 - Subsec. (m). Pub. L. 101-157, Sec. 5, substituted "in
excess of (1) 45 percent of the applicable minimum wage rate during
the year beginning April 1, 1990, and (2) 50 percent of the
applicable minimum wage rate after March 31, 1991," for "in excess
of 40 per centum of the applicable minimum wage rate,".
Subsec. (r). Pub. L. 101-157, Sec. 3(d), designated first
sentence as par. (1), made a separate sentence out of the existing
proviso and redesignated cls. (1), (2), and (3) as (A), (B), and
(C), respectively, designated second sentence as par. (2), in par.
(2) as so designated, redesignated existing pars. (1), (2), and (3)
as subpars. (A), (B), and (C), respectively, and, in subpar. (A) as
so redesignated, substituted "school is operated" for "school is
public or private or operated".
Subsec. (s). Pub. L. 101-157, Sec. 3(a), amended subsec. (s)
generally, completely revising definition of "enterprise engaged in
commerce or in the production of goods for commerce".
1985 - Subsec. (e)(1). Pub. L. 99-150, Sec. 4(a)(1), substituted
"paragraphs (2), (3), and (4)" for "paragraphs (2) and (3)".
Subsec. (e)(2)(C)(ii). Pub. L. 99-150, Sec. 5, struck out "or" at
end of subcl. (III), struck out "who" in subcl. (IV) before "is
an", substituted ", or" for period at end of subcl. (IV), and added
subcl. (V).
Subsec. (e)(4). Pub. L. 99-150, Sec. 4(a)(2), added par. (4).
1977 - Subsec. (m). Pub. L. 95-151, Sec. 3(b), substituted "45
per centum" for "50 per centum", effective Jan. 1, 1979, and "40
per centum" for "45 per centum", effective Jan. 1, 1980.
Subsec. (s). Pub. L. 95-151, Sec. 9(a)-(c), in par. (1) inserted
exception for enterprises comprised exclusively of retail or
service establishments and described in par. (2), added par. (2),
redesignated former pars. (2) to (5) as (3) to (6), respectively,
and in text following par. (6), as so redesignated, inserted
provisions relating to coverage of retail or service establishments
subject to section 206(a)(1) of this title on June 30, 1978, and
provisions relating to violations of such coverage requirements.
Subsec. (t). Pub. L. 95-151, Sec. 3(a), substituted "$30" for
"$20".
1974 - Subsec. (d). Pub. L. 93-259, Sec. 6(a)(1), redefined
"employer" to include a public agency and struck out text which
excluded from such term the United States or any State or political
subdivision of a State (except with respect to employees of a
State, or a political subdivision thereof, employed (1) in a
hospital, institution, or school referred to in last sentence of
subsec. (r) of this section, or (2) in the operation of a railway
or carrier referred to in such sentence).
Subsec. (e). Pub. L. 93-259, Sec. 6(a)(2), in revising definition
of "employee", incorporated existing introductory text in
provisions designated as par. (1), inserting exception provision;
added par. (2); incorporated existing cl. (1) in provisions
designated as par. (3); and struck out former cl. (2) excepting
from "employee", "any individual who is employed by an employer
engaged in agriculture if such individual (A) is employed as a hand
harvest laborer and is paid on a piece rate basis in an operation
which has been, and is customarily and generally recognized as
having been, paid on a piece rate basis in the region of
employment, (B) commutes daily from his permanent residence to the
farm on which he is so employed, and (C) has been engaged in
agriculture less than thirteen weeks during the preceding calendar
year".
Subsec. (h). Pub. L. 93-259, Sec. 6(a)(3), substituted "other
activity, or branch or group thereof" for "branch thereof, or group
of industries".
Subsec. (m). Pub. L. 93-259, Sec. 13(e), substituted in provision
respecting wage of tipped employee "the amount of the increase on
account of tips determined by the employer may not exceed the value
of tips actually received by the employee" for "in the case of an
employee who (either himself or acting through his representative)
shows to the satisfaction of the Secretary that the actual amount
of tips received by him was less than the amount determined by the
employer as the amount by which the wage paid him was deemed to be
increased under this sentence, the amount paid such employee by his
employer shall be deemed to have been increased by such lesser
amount" and inserted "The previous sentence shall not apply with
respect to any tipped employee unless (1) such employee has been
informed by the employer of the provisions of this subsection, and
(2) all tips received by such employee have been retained by the
employee, except that this subsection shall not be construed to
prohibit the pooling of tips among employees who customarily and
regularly receive tips."
Subsec. (r)(3). Pub. L. 93-259, Sec. 6(a)(4), added par. (3).
Subsec. (s). Pub. L. 93-259, Sec. 6(a)(5), in first sentence
substituted preceding par. (1) "or employees handling, selling, or
otherwise working on goods or materials" for "including employees
handling, selling, or otherwise working on goods" and added par.
(5), and inserted third sentence deeming employees of an enterprise
which is a public agency to be employees engaged in commerce, or in
production of goods for commerce, or employees handling, selling,
or otherwise working on goods or materials that have been moved in
or produced for commerce.
Subsec. (x). Pub. L. 93-259, Sec. 6(a)(6), added subsec. (x).
1972 - Subsecs. (r)(1), (s)(4). Pub. L. 92-318, Sec. 906(b)(2),
(3), inserted reference to a preschool.
1966 - Subsec. (d). Pub. L. 89-601, Sec. 102(b), expanded
definition of employer to include a State or a political
subdivision thereof with respect to employees in a hospital,
institution, or school referred to in last sentence of subsec. (r)
of this section, or in the operation of a railway or carrier
referred to in such sentence.
Subsec. (e). Pub. L. 89-601, Sec. 103(a), excluded from
definition of "employee," when that term is used in definition of
"man-day," any agricultural employee who is the parent, spouse,
child, or other member of his employer's immediate family and any
agricultural hand harvest laborer, paid on a piece rate basis, who
commutes daily from his permanent residence to the farm on which he
is so employed, and who has been employed in agriculture less than
13 weeks during the preceding calendar year.
Subsec. (m). Pub. L. 89-601, Sec. 101(a), inserted provisions for
determining the wage of a tipped employee.
Subsec. (n). Pub. L. 89-601, Sec. 215(a), struck out provision
which directed that definition of "resale" was not applicable when
"resale" was used in subsection (s)(1) of this section.
Subsec. (r). Pub. L. 89-601, Sec. 102(a), extended activities
performed for a business purpose to include activities in the
operation of hospitals, institutions for the sick, aged, or
mentally ill or defective, schools for the handicapped, elementary
and secondary schools, institutions of higher learning, or street,
suburban, or interurban electric railway or local trolley or
motorbus carriers if subject to regulation by a State or local
agency regardless of whether public or private or whether operated
for profit or not for profit.
Subsec. (s). Pub. L. 89-601, Sec. 102(c), removed gross annual
business level tests of $1,000,000 for retail and service
enterprises, street, suburban, or interurban electric railways or
local trolley or motorbus carriers, and brought within the coverage
of the gross annual business test all enterprises having employees
engaged in commerce in the production of goods for commerce,
including employees handling, selling, or otherwise working on
goods that have been moved in or produced for commerce, lowered the
minimum gross annual volume test for covered enterprises from
$1,000,000 to $500,000 for the period from Feb. 1, 1967, through
Jan. 31, 1969, and to $250,000 for the period after Jan. 31, 1969,
retained the $250,000 annual gross volume test for coverage of
gasoline service establishments, and expanded coverage to include
laundering or cleaning services, construction or reconstruction
activities, or operation of hospitals, certain institutions for the
care of the sick, aged, or mentally ill, certain special schools,
and institutions of higher learning regardless of annual gross
volume.
Subsec. (t). Pub. L. 89-601, Sec. 101(b), added subsec. (t).
Subsec. (u). Pub. L. 89-601, Sec. 103(b), added subsec. (u).
Subsecs. (v), (w). Pub. L. 89-601, Sec. 102(d), added subsecs.
(v) and (w).
1961 - Subsec. (m). Pub. L. 87-30, Sec. 2(a), provided for
exclusion from wages under a collective-bargaining agreement the
cost of board, lodging, or other facilities and authorized the
Secretary to determine the fair value of board, lodging, or other
facilities for defined classes of employees in defined areas to be
used in lieu of actual cost.
Subsec. (n). Pub. L. 87-30, Sec. 2(b), inserted ", except as used
in subsection (s)(1) of this section,".
Subsecs. (p) to (s). Pub. L. 87-30, Sec. 2(c), added subsecs. (p)
to (s).
1949 - Subsec. (b). Act Oct. 26, 1949, Sec. 3(a), substituted
"between" for "from" after "States or", and "and" for "to" before
"any place".
Subsec. (j). Act Oct. 26, 1949, Sec. 3(b), inserted "closely
related" before "process" and substituted "directly essential" for
"necessary" after "occupation".
Subsec. (l)(1). Act Oct. 26, 1949, Sec. 3(c), included parental
employment of a child under 16 years of age in an occupation found
by the Secretary of Labor to be hazardous for children between the
ages of 16 and 18 years, in definition of oppressive child labor.
Subsecs. (n), (o). Act Oct. 26, 1949, Sec. 3(d), added subsecs.
(n) and (o).
CONSTRUCTION OF 1999 AMENDMENT
Pub. L. 106-151, Sec. 2, Dec. 9, 1999, 113 Stat. 1731, provided
that: "The amendment made by section 1 [amending this section]
shall not be construed to reduce or substitute for compensation
standards: (1) contained in any existing or future agreement or
memorandum of understanding reached through collective bargaining
by a bona fide representative of employees in accordance with the
laws of a State or political subdivision of a State; and (2) which
result in compensation greater than the compensation available to
employees under the overtime exemption under section 7(k) of the
Fair Labor Standards Act of 1938 [29 U.S.C. 207(k)]."
EFFECTIVE DATE OF 1989 AMENDMENT
Section 3(e) of Pub. L. 101-157 provided that: "The amendments
made by this section [amending this section and section 213 of this
title] shall become effective on April 1, 1990."
Section 5 of Pub. L. 101-157 provided that the amendment made by
that section is effective Apr. 1, 1990.
EFFECTIVE DATE OF 1985 AMENDMENT; PROMULGATION OF REGULATIONS
Section 6 of Pub. L. 99-150 provided that: "The amendments made
by this Act [amending this section and sections 207 and 211 of this
title and enacting provisions set out as notes under this section
and sections 201, 207, 215, and 216 of this title] shall take
effect April 15, 1986. The Secretary of Labor shall before such
date promulgate such regulations as may be required to implement
such amendments."
EFFECTIVE DATE OF 1977 AMENDMENT
Section 3(a) of Pub. L. 95-151 provided that the amendment made
by that section is effective Jan. 1, 1978.
Section 3(b)(1) of Pub. L. 95-151 provided that the amendment
made by that section, reducing the maximum percentage of the
minimum wage used in determining tips as wages from 50 to 45 per
centum, is effective Jan. 1, 1979.
Section 3(b)(2) of Pub. L. 95-151 provided that the amendment
made by that section, reducing the maximum percentage of the
minimum wage used in determining tips as wages from 45 to 40 per
centum, is effective Jan. 1, 1980.
Section 15(a), (b) of Pub. L. 95-151 provided that:
"(a) Except as provided in sections 3, 14, and subsection (b) of
this section, the amendments made by this Act [amending sections
206, 208, 213, and 216 of this title and enacting provisions set
out as a note under section 204 of this title] shall take effect
January 1, 1978.
"(b) The amendments made by sections 8, 9, 11, 12, and 13
[amending this section and sections 213 and 214 of this title]
shall take effect on the date of the enactment of this Act [Nov. 1,
1977]."
EFFECTIVE DATE OF 1974 AMENDMENT
Amendment by Pub. L. 93-259 effective May 1, 1974, see section
29(a) of Pub. L. 93-259, set out as a note under section 202 of
this title.
EFFECTIVE DATE OF 1966 AMENDMENT
Section 602 of Pub. L. 89-601 provided in part that: "Except as
otherwise provided in this Act, the amendments made by this Act
[amending this section and sections 206, 207, 213, 214, 216, 218,
and 255 of this title] shall take effect on February 1, 1967."
EFFECTIVE DATE OF 1961 AMENDMENT
Section 14 of Pub. L. 87-30 provided that: "The amendments made
by this Act [amending this section and sections 204 to 208, 212 to
214, 216, and 217 of this title] shall take effect upon the
expiration of one hundred and twenty days after the date of its
enactment [May 5, 1961], except as otherwise provided in such
amendments and except that the authority to promulgate necessary
rules, regulations, or orders with regard to amendments made by
this Act, under the Fair Labor Standards Act of 1938 and amendments
thereto [this chapter], including amendments made by this Act, may
be exercised by the Secretary on and after the date of enactment of
this Act [May 5, 1961]."
EFFECTIVE DATE OF 1949 AMENDMENT
Amendment by act Oct. 26, 1949, effective ninety days after Oct.
26, 1949, see section 16(a) of act Oct. 26, 1949, set out as a note
under section 202 of this title.
TRANSFER OF FUNCTIONS
In subsec. (l), "Secretary of Labor" substituted for "Chief of
the Children's Bureau in the Department of Labor" and for "Chief of
the Children's Bureau" pursuant to Reorg. Plan No. 2 of 1946, Sec.
1(b), eff. July 16, 1946, 11 F.R. 7873, 60 Stat. 1095, set out in
the Appendix to Title 5, Government Organization and Employees,
which transferred functions of Children's Bureau and its Chief
under sections 201 to 216 and 217 to 219 of this title to Secretary
of Labor to be performed under his direction and control by such
officers and employees of Department of Labor as he designates.
PRESERVATION OF COVERAGE
Section 3(b) of Pub. L. 101-157 provided that:
"(1) In general. - Any enterprise that on March 31, 1990, was
subject to section 6(a)(1) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(a)(1)) and that because of the amendment made by
subsection (a) [amending this section] is not subject to such
section shall -
"(A) pay its employees not less than the minimum wage in effect
under such section on March 31, 1990;
"(B) pay its employees in accordance with section 7 of such Act
(29 U.S.C. 207); and
"(C) remain subject to section 12 of such Act (29 U.S.C. 212).
"(2) Violations. - A violation of paragraph (1) shall be
considered a violation of section 6, 7, or 12 of the Fair Labor
Standards Act of 1938 [29 U.S.C. 206, 207, 212], as the case may
be."
VOLUNTEERS; PROMULGATION OF REGULATIONS
Section 4(b) of Pub. L. 99-150 provided that: "Not later than
March 15, 1986, the Secretary of Labor shall issue regulations to
carry out paragraph (4) of section 3(e) (as amended by subsection
(a) of this section) [29 U.S.C. 203(e)(4)]."
PRACTICE OF PUBLIC AGENCY IN TREATING CERTAIN INDIVIDUALS AS
VOLUNTEERS PRIOR TO APRIL 15, 1986; LIABILITY
Section 4(c) of Pub. L. 99-150 provided that: "If, before April
15, 1986, the practice of a public agency was to treat certain
individuals as volunteers, such individuals shall until April 15,
1986, be considered, for purposes of the Fair Labor Standards Act
of 1938 [this chapter], as volunteers and not as employees. No
public agency which is a State, a political subdivision of a State,
or an interstate governmental agency shall be liable for a
violation of section 6 [29 U.S.C. 206] occurring before April 15,
1986, with respect to services deemed by that agency to have been
performed for it by an individual on a voluntary basis."
STATUS OF BAGGERS AT COMMISSARY OF MILITARY DEPARTMENT
Pub. L. 95-485, title VIII, Sec. 819, Oct. 20, 1978, 92 Stat.
1626, provided that: "Notwithstanding any other provision of law,
an individual who performs bagger or carryout service for patrons
of a commissary of a military department may not be considered to
be an employee for purposes of the Fair Labor Standards Act of 1938
[this chapter] by virtue of such service if the sole compensation
of such individual for such service is derived from tips."
ADMINISTRATIVE ACTION BY SECRETARY OF LABOR WITH REGARD TO
IMPLEMENTATION OF FAIR LABOR STANDARDS AMENDMENTS OF 1977
Section 15(c) of Pub. L. 95-151 provided that: "On and after the
date of the enactment of this Act [Nov. 1, 1977], the Secretary of
Labor shall take such administrative action as may be necessary for
the implementation of the amendments made by this Act [See Short
Title of 1977 Amendment note set out under section 201 of this
title]."
RULES, REGULATIONS, AND ORDERS PROMULGATED WITH REGARD TO 1966
AMENDMENTS
Section 602 of Pub. L. 89-601 provided in part that: "On and
after the date of the enactment of this Act [Sept. 23, 1966] the
Secretary is authorized to promulgate necessary rules, regulations,
or orders with regard to the amendments made by this Act [see Short
Title of 1966 Amendment note set out under section 201 of this
title]."
(!1) So in original. Probably should be preceded by "in".