View all text of Subjgrp 453 [§ 790.3 - § 790.12]
§ 790.9 - “Compensable * * * by an express provision of a written or nonwritten contract.”
(a) Where an employee engages in a “preliminary” or “postliminary” activity of the kind described in section 4(a) of the Portal Act and this activity is “compensable * * * by an express provision of a written or nonwritten contract” applicable to the employment, section 4 does not operate to relieve the employer of liability or punishment under the Fair Labor Standards Act with respect to such activity,
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68 See § 790.4.
69 See §§ 790.5 and 790.7.
(b) The word “compensable,” is used in subsections (b), (c), and (d) of section 4 without qualification.
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70 The word is also so used throughout section 2 of the Act which relates to past claims. See §§ 790.28-790.25.
71 Cf. Conference Report, pp. 9, 10, 12, 13; message of the President to the Congress on approval of the Portal-to-Portal Act, May 14, 1947 (93 Cong. Rec. 5281).
(c) The phrase “compensable by an express provision of a written or non- written contract” in section 4(b) of the Portal Act offers no difficulty where a written contract states that compensation shall be paid for the specific activities in question, naming them in explicit terms or identifying them through any appropriate language. Such a provision clearly falls within the statutory description.
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72 See colloquy between Senators Donnell and Lodge, 93 Cong. Rec. 2178; colloquies between Senators Donnell and Hawkes, 93 Cong. Rec. 2179, 2181-2182.
(d) An activity of an employee is not “compensable by * * * a written or nonwritten contract” within the meaning of section 4(b) of the Portal Act unless the contract making the activity compensable is one “between such employee,
72 his agent, or collective-bargaining representative and his employer.”
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73 The terms “employee” and “employer” have the same meaning as when used in the Fair Labor Standards Act. Portal-to-Portal Act, section 13(a).