(a) Scope of bulletin and general coverage statement. This subpart contains the opinions of the Administrator of the Wage and Hour Division with respect to the applicability of the Fair Labor Standards Act to employees engaged in the building and construction industry. The provisions of the Act expressly make its application dependent on the character of an employee's activities, that is, on whether he is engaged "in commerce" or in the "production of goods for commerce including any closely related process or occupation directly essential to such production." Under either of the two prescribed areas of covered work, coverage cannot be determined by a rigid or technical formula. The United States Supreme Court has said of both phases that coverage must be given "a liberal construction" determined "by practical considerations, not by technical conceptions." 1 The Court has specifically rejected the technical "new construction" concept, as a reliable test for determining coverage under this Act. 2
1
Mitchell v. Vollmer & Co.,349 U.S. 427
Kirschbaum Co. v. Walling,316 U.S. 517
Alstate Construction Co. v. Durkin,345 U.S
13.
2
Mitchell v. Vollmer & Co., ante.
So far as construction work specifically is
concerned, the courts have cast the relevant tests for determining the scope of
"in commerce" coverage in substantially similar language as they have used in
construing the "production" phase of coverage. Thus the Act applies to
construction work which is so intimately related to the functioning of
interstate commerce as to be, in practical effect, a part of it, as well as to
construction work which has a close and immediate tie with the process of
production. 3
3
Mitchell v. Vollmer & Co., ante; Cf
Armour & Co. v. Wantock,323 U.S
126.
(b) Engagement in commerce. The United States Supreme Court has held that the "in commerce" phase of coverage extends "throughout the farthest reaches of the channels of interstate commerce," and covers not only construction work physically in or on a channel or instrumentality of interstate commerce but also construction work "so directly and vitally related to the...
