§254 — Title 29 Labor | U.S. Code

Summary

Employers do not have to pay, and cannot be punished under the Fair Labor Standards Act, the Walsh‑Healey Act, or the Bacon‑Davis Act, for failing to pay minimum wage or overtime for a worker’s time spent going to or from the actual place where the worker does their main job, or for tasks done before or after that main job, if those activities happened on or after May 14, 1947. If a contract (written or oral) in effect at the time says those activities must be paid, the employer must pay. The employer must also pay if a workplace custom or practice in effect at the time makes them paid, as long as that custom does not conflict with any contract. Only the parts of the day that the contract or custom makes payable are counted when figuring minimum wage and overtime.

Title 29, §254

Labor — Source: USLM XML via OLRC

(a)Except as provided in subsection (b), no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], the Walsh-Healey Act, or the Bacon-Davis Act,11 See References in Text note below. on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947—

(1)walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2)activities which are preliminary to or postliminary to said principal activity or activities,

(b)Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to any activity, the employer shall not be so relieved if such activity is compensable by either—

(1)an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or

(2)a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.

(c)For the purposes of subsection (b), an activity shall be considered as compensable under such contract provision or such custom or practice only when it is engaged in during the portion of the day with respect to which it is so made compensable.

(d)In the application of the minimum wage and overtime compensation provisions of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], of the Walsh-Healey Act, or of the Bacon-Davis Act,1 in determining the time for which an employer employs an employee with respect to walking, riding, traveling, or other preliminary or postliminary activities described in subsection (a) of this section, there shall be counted all that time, but only that time, during which the employee engages in any such activity which is compensable within the meaning of subsections (b) and (c) of this section.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Fair Labor Standards Act of 1938, as amended, referred to in subsecs. (a) and (d), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of this title. For complete classification of this Act to the Code, see section 201 of this title and Tables. The Walsh-Healey and Bacon-Davis Acts, referred to in subsecs. (a) and (d), are defined for purposes of this chapter in section 262 of this title.

Amendments

1996—Subsec. (a). Pub. L. 104–188 in closing provisions inserted at end “For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.”

Statutory Notes and Related Subsidiaries

Effective Date

of 1996 Amendment Pub. L. 104–188, [title II], § 2103, Aug. 20, 1996, 110 Stat. 1928, provided that: “The amendment made by section 2101 [probably means section 2102 of Pub. L. 104–188, amending this section] shall take effect on the date of the enactment of this Act [Aug. 20, 1996] and shall apply in determining the application of section 4 of the Portal-to-Portal Act of 1947 [this section] to an employee in any civil action brought before such date of enactment but pending on such date.”

§254 Relief from liability and punishment under the Fair Labor Standards Act of 1938, the Walsh-Healey Act, and the Bacon-Davis Act for failure to pay minimum wage or overtime compensation