Code of Federal Regulations Title 29. Labor § 29.776.2 Employee basis of coverage

(a) The coverage of the Act's wage and hours provisions as described in sections 6 and 7 does not deal in a blanket way with industries as a whole. Thus, in section 6, it is provided that every employer shall pay the statutory minimum wage to “each of his employees who is engaged in commerce or in the production of goods for commerce.” It thus becomes primarily an individual matter as to the nature of the employment of the particular employee. Some employers in a given industry may have no employees covered by the Act;  other employers in the industry may have some employees covered by the Act, and not others;  still other employers in the industry may have all their employees within the Act's coverage. If, after considering all relevant factors, employees are found to be engaged in covered work, their employer cannot avoid his obligations to them under the Act on the ground that he is not “engaged in commerce or in the production of goods for commerce.” To the extent that his employees are so engaged, he is himself so engaged.  9

⁹ Kirschbaum v. Walling, 316 U.S. 517. See also Walling v. Jacksonville Paper Co., 317 U.S. 564;  McLeod v. Threlkeld, 319 U.S. 491;  Mabee v. White Plains Pub. Co., 327 U.S. 178.

(b) In determining whether an individual employee is within the coverage of the wage and hours provisions, however, the relationship of an employer's business to commerce or to the production of goods for commerce may sometimes be an important indication of the character of the employee's work. [FN10] It is apparent, too, from the 1949 amendment to the definition of “produced” and its legislative history that an examination of the character of the employer's business will in some borderline situations be necessary in determining whether the employees' occupation bears the requisite close relationship to production for commerce. [FN11]