SUBJECT: Exemptions of Fair Labor Standards Act
You raised the question whether the Fair Labor Standards Act and the wages and hours provisions therein apply to our inspectors who perform services outside U.S. territorial waters.
My answer: If an otherwise non-exempt inspector performs services outside U.S. territorial waters for an entire workweek, he is exempt from the Act for that workweek. If, on the other hand, the inspector performs services within the United States for any portion of a given workweek, he remains non-exempt for that entire workweek.
The term “workweek” is defined as follows:
An employee’s workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. For purposes of computing pay due under the Fair Labor Standards Act, a single workweek may be established for a plant or other establishment as a whole, or different workweeks may be established for different employees or groups of employees. Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act. (Dept. of Labor Interpretive Bulletin, 29 C.F.R. §778.105)
The Act provides for several exemptions, including the following:
The provisions of sections 206 [re: minimum wages], 207 [re: maximum hours, i.e., overtime], 211 [re: collection of data], and 212 [re: child labor] of this title shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country or within territory under the jurisdiction of the United States other than the following: the District of Columbia; Puerto Rico; the Virgin Islands, outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act; American Samoa; Guam; Wake Island; Eniwetok Atoll; Kwajalein Atoll; Johnston Island; a State of the United States. Id. §213 (f).
The Act does not apply outside the United States; accordingly, an inspector who performs services in a foreign country is exempt from the Act for the purposes of those services.
Case Law Support
• Burns v. Metcalfe Construction Company, 69 F. Supp. 381, 382 (W.D. Mo. 1946): The Act held inapplicable to construction work performed in Canada.
• Bernhard v. Metcalfe Construction Company, 64 F. Supp. 953, 954 (D. Neb. 1946): The application of the Act held to be limited to “the territorial limits of the United States, its territories and possessions.”
• Filardo v. Foley Bros. Inc., 181 Misc. 136, 45 N.Y.S.2d 262, 263-64 (Sup. Ct. 1943): The Act held inapplicable “to work and employees in foreign countries even though such employees are citizens of the United States.”
• Wirtz v. Healy, 227 F. Supp. 123 (N.D. III. 1964): The Act held inapplicable to workweek “in which the tour escort performs all of his work exclusively in a foreign country.”
This case further refines the principle of the Act as stated in my second paragraph of this memo:
The exemption provided by Section 13 (f) of the Act is inapplicable to a tour escort of defendants who, during a particular workweek, performs services both in a workplace within the United States and in a workplace within a foreign country…. Thus, when a tour escort of defendants spends part of workweek with a tour in the United States, it makes no difference where the remainder of such work in that week is performed; the tour escort is entitled to the benefits of the Act for the entire week….
The exemption provided by Section 13 (f) of the Act is applicable to a tour escort of defendants during any workweek in which the tour escort performs all of his work exclusively in a foreign country. (Id. at 129)
Illustration of Our Application
For an example of the Act as it would apply to Helco: Assume the workweek for both Inspector A and Inspector B begins and terminates on Sunday at midnight. Inspector A leaves the United States on Wednesday of week 1 to investigate a construction site in England and returns on Wednesday of week 2. Since Inspector A performs services within the United States during parts of both week 1 and week 2, the Act applies to him for both of the weeks, including the time spent in England. He must be paid minimum wage and overtime.
Inspector B leaves the United States on Wednesday of week 1 to investigate a construction site in England and returns on Wednesday of week 3. Since Inspector B performs services within the United States during parts of week 1 and week 3, the Act applies to him with respect to those two weeks, including the time spent in England during those two weeks. But, since Inspector B performs services exclusively outside the United States during week 2, the Act would not apply to that week. He could be paid less than minimum wage and receive no overtime pay for services during that second week in England.
I hope this clarifies our situation. If there is anything further, let me know.