C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER B—STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS › PART 776—INTERPRETATIVE BULLETIN ON THE GENERAL COVERAGE OF THE WAGE AND HOURS PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938 › Subpart A—General

29 C.F.R. § 776.10

Employees participating in the actual movement of commerce

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(a) Under the principles stated in § 776.9, the wage and hours provisions of the Act apply typically, but not exclusively, to employees such, as those in the telephone, 29 telegraph, 30 television, radio, 31 transportation and shipping 32 industries, since these industries serve as the actual instrumentalities and channels of interstate and foreign commerce. Similarly, employees of such businesses as banking, insurance, newspaper publishing, 33 and others which regularly utilize the channels of interstate and foreign commerce in the course of their operations, are generally covered by the Act.

29Schmidt v. Peoples Telephone Union of Maryville, Mo., 138 F. 2d 13 (C.A. 8); North Shore Corp. v. Barnett, 143 F. 2d 172 (C.A. 5); Strand v. Garden Valley Telephone Co., 51 F. Supp. 898 (D. Minn.).

30Western Union Telegraph Co. v. Lenroot, 323 U.S. 490; Western Union Telegraph Co. v. McComb, 165 F. 2d 65 (C.A. 6), certiorari denied 333 U.S. 862; Moss v. Postal Telegraph Cable Co., 42 F. Supp. 807 (M.D. Ga.).

31Wilson v. Shuman, 140 F. 2d 644 (C.A. 8); Wabash Radio Corp. v. Walling, 162 F. 2d 391 (C.A. 6).

32Overnight Motor Co. v. Missel, 316 U.S. 572; Hargis v. Wabash R. Co., 163 F. 2d 607 (C.A. 7); Rockton & Rion R.R. v. Walling 146 F. 2d 111 (C.A. 4), certiorari denied 334 U.S. 880; Walling v. Keansburg Steamboat Co., 162 F. 2d 405 (C.A. 3); Knudsen v. Lee & Simmons, 163 F. 2d 95 (C.A. 2); Walling v. Southwestern Greyhound Lines, 65 F. Supp. 52 (W.D. Mo.); Walling v. Atlantic Greyhound Corp., 61 F. Supp. 992 (E.D. S.C.).

33Sun Pub. Co. v. Walling, 140 F. 2d 445 (C.A. 6), certiorari denied 322 U.S. 728. See also Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, and McComb v. Dessau, 9 W.H. Cases 332 (S.D. Calif.) 17 Labor Cases, 65, 643.

(b) Employees whose work is an essential part of the stream of interstate or foreign commerce, in whatever type of business they are employed, are likewise engaged in commerce and within the Act's coverage. This would include, for example, employees of a warehouse whose activities are connected with the receipt or distribution of goods across State lines. 34 Also, since “commerce” as used in the Act includes not only “transmission” of communications but “communication” itself, employees whose work involves the continued use of the interstate mails, telegraph, telephone or similar instrumentalities for communication across State lines are covered by the Act. 35 This does not mean that any use by an employee of the mails and other channels of communication is sufficient to establish coverage. But if the employee, as a regular and recurrent part of his duties, uses such instrumentalities in obtaining or communicating information or in sending or receiving written reports or messages, or orders for goods or services, or plans or other documents across State lines, he comes within the scope of the Act as an employee directly engaged in the work of “communication” between the State and places outside the State.

34Phillips Co. v. Walling, 324 U.S. 490; Clyde v. Broderick, 144 F. 2d 348 (C.A. 10).

35McComb v. Weller, 9 W.H. Cases 53 (W.D. Tenn.); Yunker v. Abbye Employment Agency, 32 N.Y.S. 2d 715; (Munic. Ct. N.Y.C.); Phillips v. Meeker Coop. Light & Power Asso., 63 F. Supp. 733 (D. Minn.); Anderson Bros. Corp. v. Flynn, 218 S.W. 2d 653 (C.A. Ky.).

[15 FR 2925, May 17, 1950, as amended at 22 FR 5684, July 18, 1957]
Notes of Decisions
Cited in 23 cases (4 in the last 5 years), 1983–2023 · leading case: Bowrin v. Catholic Guardian Soc'y, 417 F. Supp. 2d 449 (S.D.N.Y. 2006).
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Bowrin v. Catholic Guardian Soc'y, 417 F. Supp. 2d 449 (S.D.N.Y. 2006). · cites it 4× “But if the employee, as a regular and recurrent part of his duties, uses such instrumentalities in obtaining or communicating information or in sending or receiving written reports or messages, or orders for goods or services, or plans or other documents across State lines, he…”
Helfand v. W.P.I.P., Inc., 165 F. Supp. 3d 392 (D. Maryland 2016). “29 C.F.R. § 776.10 (b) (“[S]ince ‘commerce’ as used in the Act includes .”
Dean v. Pac. Bellwether, LLC, 996 F. Supp. 2d 1044 (N. Mar. I. 2014). · cites it 4× “103 , or uses these communication “instrumentalities in obtaining or communicating information or in sending or receiving written reports or messages,” 29 C.F.R. § 776.10 . Narrowly construed, the Internet is a communication instrumentality, and Dean regularly used it in…”
Reagor v. Okmulgee Cnty. Fam. Resource Ctr., Inc., 501 F. App'x 805 (10th Cir. 2012). “3d at 1266 ; see also 29 C.F.R. § 776.10 (b) (requiring regular and recurrent use of instruments of communication as part of job duties).”
Locke v. St. Augustine's Episcopal Church, 690 F. Supp. 2d 77 (E.D.N.Y 2010). “” are “engaged in commerce”); 29 C.F.R. § 776.10 (b)(1957) (explaining “if the employee .”
Russell v. Cont'l Restaurant, Inc., 430 F. Supp. 2d 521 (D. Maryland 2006). “29 C.F.R. § 776.10 (b). Based on the current record, it appears that any use of interstate communications was not a regular part of Plaintiffs duties.”
William J. Johnston v. Spacefone Corp., 706 F.2d 1178 (11th Cir. 1983). · cites it 2× “” 29 C.F.R. § 776.10 (b) (1981). The trial court found that Johnston’s interstate telephone calls “were not part of his regular duties, were incidental to his primary employment, and did not constitute a substantial portion of *1184 plaintiffs time.”
Benton v. Laborers' Jt. Training Fund, 210 F. Supp. 3d 99 (D.D.C. 2016). “See 29 C.F.R. §§ 776.10 , 776.11; see also Thorne v.”
Shoemaker v. Lake Arbutus Pavilion, LLC, 115 F. Supp. 3d 974 (W.D. Wis. 2015). “” 29 C.F.R. § 776.10 (b). *980 Moreover, “[t]he Act makes no distinction as to the percentage, volume, or amount of activities of either employee or employer which constitute engaging in commerce or in the production of goods for commerce.”
Figueroa v. Am.'s Custom Brokers, Inc., 48 F. Supp. 2d 1372 (S.D. Fla. 1999). · cites it 2× “Plaintiffs satisfy the description of warehouse employees in 29 C.F.R. § 776.10 (b); therefore, they likely are employees engaged in commerce and within the FLSA’s coverage.”
Cowan v. Tricolor, Inc., 869 F. Supp. 262 (D. Del. 1994). “Co-wan’s argument that her overtime pay eligibility is governed by the Act, however, a consequence of such coverage is that she is also covered by the Act’s exemptions. This Court is able to determine Ms.”
Harlas v. Barn LLC, The (D. Colo. 2020). · cites it 2× “§ 203 (s)(1)(A)(i) and (ii), or (2) Plaintiff qualified for individual coverage by “recurrent use [of] an instrument of interstate commerce,” 29 C.F.R. §776.10 (b). (ECF No. 78, at 7–12.”
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— 29 C.F.R. § 776.10(b) — 2 cases
Figueroa v. Am.'s Custom Brokers, Inc., 48 F. Supp. 2d 1372 (S.D. Fla. 1999). “Plaintiffs satisfy the description of warehouse employees in 29 C.F.R. § 776.10 (b); therefore, they likely are employees engaged in commerce and within the FLSA’s coverage.”
Cowan v. Tricolor, Inc., 869 F. Supp. 262 (D. Del. 1994). “Co-wan’s argument that her overtime pay eligibility is governed by the Act, however, a consequence of such coverage is that she is also covered by the Act’s exemptions. This Court is able to determine Ms.”
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