§ 254. — Relief from liability and punishment under the Fair Labor Standards Act of 1938, the WalshHealey Act, and the BaconDavis Act for failure to pay minimum wage or overtime compensation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC254]
TITLE 29--LABOR
CHAPTER 9--PORTAL-TO-PORTAL PAY
Sec. 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
(a) Activities not compensable
Except as provided in subsection (b) of this section, 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 [41 U.S.C. 35 et seq.], or the Bacon-Davis Act,\1\ 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--
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\1\ See References in Text note below.
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(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,
which occur either prior to the time on any particular workday at which
such employee commences, or subsequent to the time on any particular
workday at which he ceases, such principal activity or activities. 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.
(b) Compensability by contract or custom
Notwithstanding the provisions of subsection (a) of this section
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) Restriction on activities compensable under contract or custom
For the purposes of subsection (b) of this section, 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) Determination of time employed with respect to activities
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 [41 U.S.C. 35 et seq.], 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.
(May 14, 1947, ch. 52, Sec. 4, 61 Stat. 86; Pub. L. 104-188, [title II],
Sec. 2102, Aug. 20, 1996, 110 Stat. 1928.)
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, as
amended, which is classified generally to chapter 8 (Sec. 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.''
Effective Date of 1996 Amendment
Section 2103 of Pub. L. 104-188 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.''
