EISA COYERAGE -EMPLOYMENT RELATIONSED’, STATUTORY EXCLUSIONS, GEOGRAPHICAL LIMITS

loa GENERAL

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lob THE EMPLOYMENT RELATIONSHIP

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schoals,~ons,mbmreerwor~,-ofnligiopsordtrs. Euployer~homework~by~~~. Test oftbe exqloymen! rclatiw. AmoImtofcQntrol. chiler amsi&raliiolLs. Effkct of “sale’ on tk cmplcpalt Ilzlatim. subject mat&r oftbe ctllpw reiaw. Efwt of&tcnuination oftbe emgiaymmt nlatiarrship. Traimcsandsmdent-e. - sponsontd =4Jloyment developmem prognms. Employer idemification XlLmlb issued by lIllrxd Rcvcmlc scmict. Staa&Ins tithing in skilled paramedical oczalptio&s - mnses, x-ray tedlniciarrs, etc. Golf-caddies.

. . Adlnmsmtivc xtsidms in hosphls. stldent “obscnms’ in botcls and motels. Job Corps cnroUees. sdloo1rmployees-aftcrhotaswork. unldty or college shl&nts. Fraternal orders - officers d voluat#rs. S&l-related work programs. Rixxl inmates. JLUolX. Foster parents. Voitxxmms u&r chc dmmstic Volunteer Sewices Act of 1973. Government activities - vohmtecr services. Govemmcnt-u child care scrvlcts. Election judges and officials. Patient workxx. . . Rcsuhbd drug abuse and alcohol treatment programs.

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1Oe GEOGRAPHICALLIMI’lS

Rev. 5% mELD OPmwIIoNs HANDBOOK - lonoB loa - l(lao0

ELSA COVERAGE -EMPLOYMENT RELATlONSHR’, SI'ATUTORYEXCLUSlONS,GEOGR4PHICALLlMITS

100 GENEIUL

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whether the contract is for aniadtfinite period or fora relatively long period;

whtther the possible employer may discharge employees of& alleged i n d e w contractor;

whether mt possible unplayer may cancel b e amtract at thtir discretion, a d 011 how much mtice;

(2) Must employees of the alleged hdqmdent contractor be approved by the possible tmployer?

(3) Dots tk possible employer laep the book and pnpare the payroll for the possible emgloyee?

&v.5% PIEU) -zlous UANDBOOK - lw2om l&07-IobcB

Rev.596 FIEtD OpERAnONS HANDBOOK - 10/2OI’93

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@I On the other hand, an employment relationship wiI1 gcncraIly exist with regard to students whose duties are not part of an overall educational program and who receive some compensation. Ibus, for example, students who work at food service counters or sell progmms or usher at athletic events. or who wait on tables or wash dishes in dormitories in antlcipauon of some csompensation (money. meals. etc.) are generally considered employees under the Act.

lob25 Fraternal orders - ofIicers and volunteers.

WH will not assert that an employment relationship exists under the Act for persons who volunteer their services. including those who are elected. to a fraternal order not as cmpioyns and without contemplation of pay. Included would be such persons as the secretary and director or trustees of individual lodges. The payment of a nominal sum would not affect the status of a bona fide voiuntcer. (See also FOH 12aO3.)

lob26 School related work Droeranrr.

(4 Pursuant to the provisions of Set 14(d) of the FLSA. WH will take no enforcement action with respect to MW or 07’ for public or private eIemcntary or secondary students employed by any school in their school district in various school-related work programs, provided, that such employment is in compliance with applicable CL provisions. This position is adopted without prejudice to the rights of individual employees under Set 16(b). This non-enforcement policy is not applicable to workers with disabilities in sheltered workshops operated by elementary or secondary schools since sheltered employment is not considered to be an integral pan of a regular education program.

(b) If such employment is not in compliance with applicable CL provisions, the students so employed must be paid MW and OT for all hours worked in any w/w in which they were so employed. Also, the employer will be subject to CLKMP’s.

3b27 Prison inmates.

(a) Gencraily. a prison inmate who, while serving a sentence, is required to work by or who does work for the prison, within the confines of the institution, on prison farms. roadgangs. or other areas directly associated with the incarceration program. is not an employee within the meaning of the Acr (see also FOH lOb03(g)).

(b) A different situation exists, however, where inmates are contracted out by an institution to a private company or individual. In such instances an employee-employer relationship is created between the private company or individual and the prisoners. This is ttue regardless of whether the work is performed within the confines of the institution or elsewhere.

lob28 Jurors.

Service on jury duty for either a petit or grand jury does not result in the establishment of an employment relationship. Thus. all jurors and prospective jurors called to serve by the requesting public agency are not empioytes under the Acr.

lob29 Foster Parents

Some governmental agencies operate social service programs which arrange for and finance the rearing of children by foster parents. No employment relationship will be deemed to exist . wncre:

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Rev. 633 FIELD OPERAnoNS HANDBOOK - 6/X2/98 10b29 - 10b31

(I) a sptc or licutscd private agency seIects an individual who vo1untatily agrees to become a foster parent &I accordance with State standa&, and

(2) the foster parent services are provided in the foster parent’s home. and

(3) the State either directly or indirectly fn the foster parent services.

lob30 Volunteers under the Domestic Volunteer Services AC! of 197$

(a) ” Qm t” a ‘or ‘00” .

Volunteers participating in either the “Foster Grandparent’ or “Senior Companion” programs under the Domestic Volunteer Services Act of 1973. are not employees under the FLSA.

09 *Univtrsitv Year for Action” WYA) or-.

(1) Situations may be encountered where a university has established a federally-funded “University Year for ACTION’ (UYA) service learning program pursuant to the Domestic Volunteer Service Act of 1973 (DVSA). These programs provide that students will receive college credits when they vohmteer to perform various services, often for a nonprofit private organization. on a full- time basis for a year. The stud&s receive a subsistence-level stipend to cover their expenses. and they are required to live at the low income level of the people they setve. The Iegislative history of the DVSA and the FLSA make clear that these students are not considered employees for purposes of the FLSA.

(2) Universities which receive federal “University Year ACTION” funds have a five-year funding limit. but arc required to make every effort to continue the program after federal funds cease. Under such UYA continuation programs, the students generally receive college credit, pay tuition, receive a stipend, keep a journal of their experiences, make presentations of their work and learning, and present periodic written reports of their progress in achieving the program’s objectives. In addition. the sponsor, ordinarily a faculty member. evaluates their internship perfoKnance.

(3) Where a UYA continuation program meets this description. WH will not assert that an employment reiationship exists. However, where programs are encountered which differ materially from the above described circumstances, obtain all the facts of the case and refer the file to the NOIOEP. ATM: FLSA Team.

lob31 Govcmmcnt activities - volunteer services.

The principles in FOH lObO3(c) may apply with respect to certain govcmmental activities. For example. an offace employee of the city may volunteer to perfotm nonclerical services. such as coaching a softbaIl or basketball team in a city-sponsored program during his or her off-duty time as a charitable or civil act. Similarly a person may panicipate in the civil defense program for civil or personal motives. Where a person performs such volunteer sqvices without promise or expectation of compensation, at hours that suit his or her own convenience whether by schedule or otherwise. and where no regular employee is replaced in the performance of normal duties, no employer-employee relationship exists with respect to such time. The activity may be performed on the employer’s premises so long as it is not done during any time the employee is rquired to be on the premises and the control exercised by the employer is only minimal. A person. however, may not be both an

Rev.596 mF11) OPmAnoNs HANDBOOK - lomv93 l&31 - lob34

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Aspartoftheir-, youthi$lorfm-timcof!f&msmayspmdrnumberofhoursinpublic da activities in amxmmity action programs or rkmpmfit organizatim formed for a public purpoe. wHwillnotsrsrertthatanuIfp~rela~exis5bctwecnoffmdersand palticipatingorgaDiza~whcrcthejlMmiicorfirst~~

(3) Amxndcrthcarpcrvisionorumtrolofthc~;and

(4) Perform the work without cmmqlation of pay.

lob39 %-vim out” mriod for alcoholics in shd - mm .

lOb40 Wdfare/w~flue~ .

(a) More and more States are adopt& welfuelworkfue programs, i.e. programs that require pcfsons to pcrformwurkinsomccapacityincxchaqcforreceivingwelfareas&ancc. -Programs=dQ beuvefullycraminrAt~&~ifulcmpioyu-emplayeenl?tionship~iccttoFLSA~. If the wclfhrc recipient is an employee subject to FUA, the following facts must be dctennin&

(3) Docsthctvearerrssistance (ca&benefits)pnMkawagcofnotltsstbanthcapplicablcMW andpropcrpaymcntofOTwhcnwork&? .

(4) Are recipients employed in violation of the child labor provisions?

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(a) ~govermnen ofaS0tc,~tis,111~dcparhncntsaadpgmciesof~oftbe5OSntes, amstitutesasingleemploycruncksrthcAct Similarly,thcgovenrmcm of a political subdivision, e.g., cormty,city,etc.,with~Ofi~&~~agescies,crrnstiwesasingle~l~rmdcrthe AC% However,~entitiesare~leanddistinctfromtbegovermnmt ofmtStadCandhmother politicalsubdivisions. ~,for~~,whneule;mpioyet~kformore~orr:~~ofd3e State govermnex& or for murc than (IDt agency of a political subdivision, such employee’s employment is by a shgle employer. Each agenq is both idividwlly and coqdly rcspnsiiic for wmpliancc with all applicable provision of the Act with respect to such employee. However, B FOH 59d.

0) Political sthiivisions &g FOH lOcO5) aul interstate agencies have traditionally been rwpized as entities stparate ami distim from the government of the state.

lOd2 lhnrnunitv action aperLcy .

(a) Public awnci~.

(1) Wbfder a community action agency, which admhhrs various anfipoverty and ecommic opporamityprograms,isacovuedemplayerrmdcrttrcFLSAdcpeadsuponthcfa~ina particular situation. Any wmmunity action agency which is an entity of a State, a poIitical subdivision of a Stare, or a combination of public agencies is clearly an employer covered under the An & Sets 3(d) and 3(x) axxi FOH lCkO5.)

0 H-, awmmunityactionagcncywhich wnsim solely of a private nonprofit agency or organixation that has been &&a&j by the state (or political subdivision tiler&) would mt thereby become a “public agency”. This does lx& of wurac, preclude covelage of such private community action agency under another provisim of the FLEA. A private community action agency does Dot become a “public agency’ merely because it receives and disbmss Federal f&is. However, s FOH 59d.

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Rev-s% FIE19 oP0bslToNs HANDBOOK - 10t2m93 l&i - 10600

1Od TYPESOFEMl?WYEE§

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b. inanycxcaheagc.ncy(asdefincdin~cm1OSofspchtitle),

c. inanytitof~lcgislativcorjudicialbranchoftheGovenmrmt wlIi&bas@ti~intbe c43mpeitive suvicc,

(3) any&ii= 2122 a Statq political saxbdivision of a State, or an inmstatc pcmmmal ,

a. who is mt subject to the civil stmicc laws of the State, political subdivision, or agency which employs him, ad

b. who-

1. holds a pablic dectivc o&e of&at State, political iiab%aion, or agency,

5. is~~inthclegislative~olEegislativebodyofsuchstatt,political subdivision, or agency ad is mt employed by the legislative library of such State, political aulxlivision, or agency.

Rev-s% FIE19 oP0bslToNs HANDBOOK - 10t2m93 l&i - 10600

1Od TYPESOFEMl?WYEE§

n lOdO Sgppeofthetenna~ .

b. inanycxcaheagc.ncy(asdefincdin~cm1OSofspchtitle),

c. inanytitof~lcgislativcorjudicialbranchoftheGovenmrmt wlIi&bas@ti~intbe c43mpeitive suvicc,

(3) any&ii= 2122 a Statq political saxbdivision of a State, or an inmstatc pcmmmal ,

a. who is mt subject to the civil stmicc laws of the State, political subdivision, or agency which employs him, ad

b. who-

1. holds a pablic dectivc o&e of&at State, political iiab%aion, or agency,

5. is~~inthclegislative~olEegislativebodyofsuchstatt,political subdivision, or agency ad is mt employed by the legislative library of such State, political aulxlivision, or agency.

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Rev. 5% J?lEm oPERAlIoNs HANDBOOK - lOnm3 l&n1 - 10606

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. J3mdwees of the Umted States.

M ember of the ehted o!TicinJ~s wrsonal m .

Set 3(en)(C) exciudes from tk definition of employee under the F’LSA in%viduals who are ael.Med byan&ctedofficeholdertokamcmkrofhisorkrpenonalstafT. Tbe”pcrsmalstaffdoesmt iucluciciDdividualswboarcdirtctlyarperviscdbysomeoDe otkrlkufkelectedofficialevmthougb tkymayks&ctedbymdservcattkpbsurcofsuchof5cial.

Gencratlypersoaalstlffinciudesonlypersonswhoatermderthtdirectsupervisionofthcel~ officiai axul who bave aimost daily comact with him or kr. It would, for example, inclLldc tk official’s private secrefary, but not tk secretary to his or kr as&ant, ortkstcnograpkrsinapml thatservices~official’s~~orspffmembersinulopentioIlllMit~~~to tkelectedofficial. It~typir-allymtinclude111membersofanoperationalunit,sincealithe members cuulcl rrot have a personal working relationship with tk ekcted official.

. . PJational Guard terhru~ .

National Guard technicians, whose positions are created by Federal statlltt, are Federal hilian employeesaadthePpplicationoftbeFLSAtomemisamaaerwithio~jraisdictionoftheCivil ServiccCcnudsicm(nowoffiaofPusoual Mamgcment)mxkrScc4(f)oftkAct. &FOH lodo2.)

Rev. 648 FIELD OPERATIONS HANDBOOK - 5/16/02 10e - 1OeOl

10e GEOGRAPHICAL LIMITS

lOeO0 Geographical limits of FLSA.

(a) Pursuant to Set 13(f) of the FLSA, the provisions of Sets 6,7, 11, and 12 of the Act do not apply to any employee whose services are performed in a work place within a foreign country or within territory under the jurisdiction of the United States other than the following:

(1) a State of the United States

(2) the District of Columbia

(3) Puerto Rico

(4) Virgin Islands

(5) Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act (43 U.S.C. 1331)’

(6) American Samoa

(7) Guam

(8) Wake Island

(9) Johnston Island

(b) Effective March 24, 1976, the FLSA, except for section 6, applied to the Northern Mariana Islands.

(c) Effective October 21, 1986, the FLSA no longer applied to Eniwetok Atoll or Kwajalein Atoll. (99 Stat. 1770)

lOeO1 FLSA application to employees performing duties both in the U.S. and foreign countries such as Canada, Mexico, or Panama.

(a) Coverage shall be asserted for U.S. and foreign citizens employed at or working out of an establishment or work site, located in a State, as defined in the Act, even though the employer is a foreign citizen, when such employees are engaged in or producing goods for interstate commerce or are employed in an enterprise described in Set 3(s).

(b) Employees employed by and working in an establishment located in a foreign country are not considered subject to the FLSA merely because they make deliveries in the States, or pick up materials in the States for transport to a foreign country.

(c) On the other hand, where an employee of such an establishment is working in the U.S. for a substantial period of time and performs covered nonexempt work, coverage would be asserted. A worker who travels more than 25 miles from the U.S. border or spends more than 72 hours in the U.S. on a single

Rev. 648 FIELD OPERATIONS HANDBOOK - 5116102 lOeO1 - lOe02

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visit (whichever occurs first) is considered to have spent a substantial period of time in the U.S. Once : worker has spent a substantial period of time in the U.S., all hours of work in the U.S. on that visit must be compensated at no less than the minimum wage, including hours of work prior to the worker reaching the 25 mile or 72 hour mark.

Employees in foreign countries.

The FLSA does not apply to employees exclusively employed in foreign countries even though they may be American citizens and employees of an American employer.