Fair Labor Standards Act Advisor
Construction employees may be individually covered by the FLSA when they (1) engage in interstate commerce or in the production of goods for interstate commerce or (2) work in a job which is closely related and directly essential to such production.
Employees of construction firms may be subject to the FLSA when they work on certain types of projects. To determine if you are covered in these situations, you must analyze the character of the construction project. The FLSA covers construction work in or on a channel or facility of interstate commerce (i.e. highway, telephone lines, etc.). The FLSA also covers construction work which is closely tied with the process of producing goods for interstate commerce, for example, construction which improves, replaces, or expands a covered production facility that ships its products across state lines. Covered construction activity includes:
- Repair, maintenance, and construction of instrumentalities of interstate commerce. An
instrumentality of interstate commerce includes railroads, highways and city streets, pipe
lines, telephone and/or electrical transmission lines, airports, bus/truck/steamship
terminals, radio or TV stations and river/streams/waterways over which interstate or
foreign commerce regularly moves.
- Repair, maintenance, reconstruction, redesign, improvement or extension or enlargement of an existing facility engaged in the production of goods for interstate commerce. The construction of a new production facility would not be a "covered" project.
An employee working on projects such as these is considered to be essential to interstate commerce or the production of goods for interstate commerce. Analyze the projects on which your employees work and answer the following question.
Are your employees engaged in any of the construction activities listed under 1. or 2. above? (You will need to ask this question for each employee or category of employee since your answer may be different for each.)