29 U.S.C. § 215 — Prohibited acts; prima facie evidence

Page 102 TITLE 29—LABOR § 215 responding month of the twelve-month period pre- ceding May 1, 1961, (2) in the case of a retail or service establishment whose employees (other than employees engaged in commerce or in the production of goods for commerce) are covered by this chapter for the first time on or after the effective date of the Fair Labor Standards Amendments of 1966, such proportion for the corresponding month of the twelve-month period im- mediately prior to such date, or (3) in the case of a re- tail or service establishment coming into existence after May 1, 1961, or a retail or service establishment for which records of student hours worked are not available, a proportion of student hours of employment to total hours of employment of all employees based on the practice during the twelve-month period preceding May 1, 1961, in (A) similar establishments of the same employer in the same general metropolitan area in which the new establishment is located, (B) similar es- tablishments of the same employer in the same or near- by counties if the new establishment is not in a metro- politan area, or (C) other establishments of the same general character operating in the community or the nearest comparable community. Before the Secretary may issue a certificate under this subsection he must find that such employment will not create a substan- tial probability of reducing the full-time employment opportunities of persons other than those employed under this subsection.’’ Subsecs. (c), (d). Pub. L. 93–259, § 24(a), (b), struck out subsec. (c) and redesignated subsec. (d) as (c). Former subsec. (c) had provided: ‘‘The Secretary, to the extent necessary in order to prevent curtailment of opportuni- ties for employment, shall by certificate or order pro- vide for the employment of full-time students, regard- less of age but in compliance with applicable child labor laws, on a part-time basis in agriculture (not to exceed twenty hours in any workweek) or on a part- time or full-time basis in agriculture during school va- cations, at a wage rate not less than 85 per centum of the minimum wage applicable under section 206 of this title. Before the Secretary may issue a certificate or order under this subsection he must find that such em- ployment will not create a substantial probability of reducing the full-time employment opportunities of persons other than those employed under this sub- section.’’ 1966—Pub. L. 89–601 provided for employment of full- time students regardless of age but in compliance with applicable child labor laws outside of their school hours in retail or service establishments or in agriculture at not less than 85 percent of the minimum wage in full- time positions during school vacations or in part-time positions not to exceed 20 hours in any workweek under certificates issued by the Secretary, set out the for- mula for the allowable proportion of student hours of employment to total hours of employment, provided for the employment of handicapped workers at rates down to 50 percent of the applicable minimum wage and at even lower rates for persons suffering severe impair- ment, authorized the establishment of special rates for handicapped workers employed in work activities cen- ters, and defined work activity centers. 1961—Pub. L. 87–30 provided for employment of stu- dents in cl. (1). 1949—Act Oct. 26, 1949, substituted ‘‘primarily’’ for ‘‘exclusively’’ after ‘‘messengers employed’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95–151 effective Nov. 1, 1977, see section 15(b) of Pub. L. 95–151, set out as a note under section 203 of this title. EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–259 effective May 1, 1974, see section 29(a) of Pub. L. 93–259, set out as a note under section 202 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–601 effective Feb. 1, 1967, except as otherwise provided, see section 602 of Pub. L. 89–601, set out as a note under section 203 of this title. EFFECTIVE DATE OF 1961 AMENDMENT Amendment by Pub. L. 87–30 effective upon expira- tion of one hundred and twenty days after May 5, 1961, except as otherwise provided, see section 14 of Pub. L. 87–30, set out as a note under section 203 of this title. EFFECTIVE DATE OF 1949 AMENDMENT Amendment by act Oct. 26, 1949, effective ninety days after Oct. 26, 1949, see section 16(a) of act Oct. 26, 1949, set out as a note under section 202 of this title. RULES, REGULATIONS, AND ORDERS PROMULGATED WITH REGARD TO 1966 AMENDMENTS Secretary authorized to promulgate necessary rules, regulations, or orders on and after the date of the en- actment of Pub. L. 89–601, Sept. 23, 1966, with regard to the amendments made by Pub. L. 89–601, see section 602 of Pub. L. 89–601, set out as a note under section 203 of this title. STUDY OF WAGES PAID HANDICAPPED CLIENTS IN SHELTERED WORKSHOPS Pub. L. 89–601, title VI, § 605, Sept. 23, 1966, 80 Stat. 845, instructed Secretary of Labor to commence a com- plete study of wage payments to handicapped clients of sheltered workshops and of feasibility of raising exist- ing wage standards in such workshops. The Secretary was directed to report to Congress by July 1, 1967, find- ings of such study with appropriate recommendations. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of other officers, employees, and agencies of Department of Labor, with certain ex- ceptions, to Secretary of Labor, with power to delegate, see Reorg. Plan No. 6 of 1950, §§ 1, 2, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5, Government Or- ganization and Employees. § 215. Prohibited acts; prima facie evidence (a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be un- lawful for any person— (1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is in- tended, any goods in the production of which any employee was employed in violation of section 206 or section 207 of this title, or in violation of any regulation or order of the Sec- retary issued under section 214 of this title; ex- cept that no provision of this chapter shall im- pose any liability upon any common carrier for the transportation in commerce in the reg- ular course of its business of any goods not produced by such common carrier, and no pro- vision of this chapter shall excuse any com- mon carrier from its obligation to accept any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a purchaser who ac- quired them in good faith in reliance on writ- ten assurance from the producer that the goods were produced in compliance with the requirements of this chapter, and who ac- quired such goods for value without notice of any such violation, shall not be deemed unlaw- ful; Page 103 TITLE 29—LABOR § 216 (2) to violate any of the provisions of section 206 or section 207 of this title, or any of the provisions of any regulation or order of the Secretary issued under section 214 of this title; (3) to discharge or in any other manner dis- criminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testi- fied or is about to testify in any such pro- ceeding, or has served or is about to serve on an industry committee; (4) to violate any of the provisions of section 212 of this title; (5) to violate any of the provisions of section 211(c) of this title, or any regulation or order made or continued in effect under the provi- sions of section 211(d) of this title, or to make any statement, report, or record filed or kept pursuant to the provisions of such section or of any regulation or order thereunder, know- ing such statement, report, or record to be false in a material respect; and (6) to violate any of the provisions of section 218d of this title. (b) For the purposes of subsection (a)(1) proof that any employee was employed in any place of employment where goods shipped or sold in com- merce were produced, within ninety days prior to the removal of the goods from such place of employment, shall be prima facie evidence that such employee was engaged in the production of such goods. (June 25, 1938, ch. 676, § 15, 52 Stat. 1068; Oct. 26, 1949, ch. 736, § 13, 63 Stat. 919; 1950 Reorg. Plan No. 6, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263; Pub. L. 117–328, div. KK, § 102(b)(1), Dec. 29, 2022, 136 Stat. 6095.) Editorial Notes AMENDMENTS 2022—Subsec. (a)(6). Pub. L. 117–328 added par. (6). 1949—Subsec. (a)(1). Act Oct. 26, 1949, § 13(a), inserted provision protecting purchaser in good faith in sale of goods produced in violation of this chapter. Subsec. (a)(5). Act Oct. 26, 1949, § 13(b), inserted ‘‘or any regulation or order made or continued in effect under the provisions of section 211(d) of this title’’ after ‘‘211(c) of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–328, div. KK, § 103(b), Dec. 29, 2022, 136 Stat. 6096, provided that: ‘‘The amendments made by section 102(b) [amending this section and section 216 of this title] shall take effect on the date that is 120 days after the date of enactment of this Act [Dec. 29, 2022].’’ EFFECTIVE DATE OF 1949 AMENDMENT Amendment by act Oct. 26, 1949, effective ninety days after Oct. 26, 1949, see section 16(a) of act Oct. 26, 1949, set out as a note under section 202 of this title. LIABILITY OF PUBLIC AGENCY FOR DISCRIMINATION AGAINST EMPLOYEE FOR ASSERTION OF COVERAGE Pub. L. 99–150, § 8, Nov. 13, 1985, 99 Stat. 791, provided that: ‘‘A public agency which is a State, political sub- division of a State, or an interstate governmental agen- cy and which discriminates or has discriminated against an employee with respect to the employee’s wages or other terms or conditions of employment be- cause on or after February 19, 1985, the employee as- serted coverage under section 7 of the Fair Labor Standards Act of 1938 [29 U.S.C. 207] shall be held to have violated section 15(a)(3) of such Act [29 U.S.C. 215(a)(3)]. The protection against discrimination af- forded by the preceding sentence shall be available after August 1, 1986, only for an employee who takes an action described in section 15(a)(3) of such Act.’’ Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of other officers, employees, and agencies of Department of Labor, with certain ex- ceptions, to Secretary of Labor, with power to delegate, see Reorg. Plan No. 6 of 1950, §§ 1, 2, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5, Government Or- ganization and Employees. § 216. Penalties (a) Fines and imprisonment Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this sub- section. (b) Damages; right of action; attorney’s fees and costs; termination of right of action Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates the provisions of section 215(a)(3) or 218d of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) or 218d of this title, including without limitation employment, rein- statement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. Any employer who violates section 203(m)(2)(B) of this title shall be liable to the employee or employees affected in the amount of the sum of any tip credit taken by the employer and all such tips unlawfully kept by the employer, and in an additional equal amount as liquidated damages. An action to re- cover the liability prescribed in the preceding sentences may be maintained against any em- ployer (including a public agency) in any Fed- eral or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees simi- larly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable at- torney’s fee to be paid by the defendant, and costs of the action. The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action,