periods occasionally vary in duration, the "pay period" is the period for which a payment of remuneration is ordinarily made to the employee by the employer, even though that period does not coincide with the actual period for which a particular payment of remuneration is made. For example, if an employer ordinarily pays a particular employee for each calendar week at the end of the week, but the employee receives a payment in the middle of the week for the portion of the week already elapsed and receives the remainder at the end of the week, the "pay period" is still the calendar week; or if, instead, that employee is sent on a trip by such employer and receives at the end of the third week a single remuneration payment for 3 weeks' services, the "pay period" is still the calendar week.

(e) If there is only one period (and such period does not exceed 31 consecutive calendar days) for which a payment of remuneration is made to the employee by the employer, such period is deemed to be a "pay period" for the purposes of this section.

(f) The rules set forth in this section do not apply (1) with respect to any services performed by the employee for the employer if the periods for which such employer makes payments of remuneration to the employee vary to the extent that there is no period "for which a payment of remuneration is ordinarily made to the employee," or (2) with respect to any services performed by the employee for the employer if the period for which a payment of remuneration is ordinarily made to the employee by such employer exceeds 31 consecutive calendar days, or (3) with respect to any service performed by the employee for the employer during a pay period if any of such service is excepted by section 210(a) (9) of the Act (except as modified by sec. 205 (o) of the Act) (see § 404.1017).

(g) If during any period for which a person makes a payment of remuneration to an employee only a portion of the employee's services constitutes employment but the rules prescribed in this section are not applicable, the remuneration for such portion of the services as constitutes employment is wages. [32 F.R. 7755, May 27, 1967]

labor" as defined in section 210 (f) of the Act. Paragraph (b) of this section relates to agricultural labor which was categorically excepted from employment under section 210(a) (1) (B) of the Act in effect prior to 1955. Paragraph (c) of this section relates to services performed prior to 1955 by foreign agricultural workers from Mexico. Paragraph (d) of this section relates to agricultural labor which is excepted from employment under section 210(a) (1) (A) of the Act in effect prior to 1955 unless performed under the conditions therein prescribed. Paragraph (e) of this section contains definitions relevant to agricultural labor. Paragraph (f) of this section relates to certain agricultural labor which is categorically excepted from employment under section 210(a) (1) of the Act in effect after 1954 and before 1959. Paragraph (g) of this section relates to service performed after 1954 by certain agricultural workers from Mexico and other foreign countries. Paragraph (h) of this section relates to service performed by sharefarmers. Paragraph (i) of this section relates to certain services performed before 1955 the remuneration for which is paid after 1954.

(b) Services excepted under section 210(a) (1) (B) of the Act in effect prior to 1955. (1) The following services were excepted from employment under section 210(a) (1) (B) of the Act in effect prior to 1955:

(i) Services performed in connection with the production or harvesting of crude gum (oleoresin) from a living tree or the processing of such crude gum into gum spirits of turpentine and gum resin, provided such processing is carried on by the original producer of such crude gum. (For provisions relating to exception of services performed after 1954 and before 1959, in connection with the production or harvesting of crude gum (oleoresin), see paragraph (f) of this section.) and

(ii) Services performed in connection with the ginning of cotton. (Beginning Jan. 1, 1955, services in connection with the ginning of cotton are not excepted from employment.)

(2) The amount of the remuneration paid for such services and the circumstances under which the services are performed are immaterial for the purposes of the exception under section 210(a) (1) (B) of the Act in effect prior to 1955.

(c) Services excepted under section 210(a) (1) (C) of the Act in effect prior

to 1955. Services performed by foreign agricultural workers from the Republic of Mexico under contracts entered into in accordance with Title V of the Agricultural Act of 1949, as amended, were excepted from employment. Contracts entered into pursuant to the provisions of such title V may have provided for the performance only of services which constitute "agricultural employment." The term "agricultural employment" as used in the Agricultural Act included certain services which do not constitute “agricultural labor” as that term is defined in section 210(f) of the Act (see paragraph (e) of this section). For purposes of Title V of the Agricultural Act of 1949, as amended, the term “agricultural employment" included services or activities included within the provisions of section (3) (f) of the Fair Labor Standards Act of 1938, as amended, or section 210(f) of the Act. Under section 507 of the Agricultural Act of 1949, as amended, and as in effect before October 3, 1961, the term "agricultural employment" included also horticultural employment, cotton ginning, compression and storing, crushing of oil seeds, and the packing, canning, freezing, drying, or other processing of perishable or seasonable agricultural products. (For provisions relating to exception of services performed by foreign agricultural workers after 1954, see paragraph (g) of this section.)

(d) Services excepted under section 210(a) (1) (A) of the Act in effect prior to 1955. (1) As used in this paragraph, the term "agricultural labor" does not include services performed in connection with the ginning of cotton or in connection with the production or harvesting of those oleoresinous products described in paragraph (b) of this section or services of certain foreign agricultural workers described in paragraph (c) of this section.

(2) Agricultural labor performed by an employee for an employer in a calendar quarter is excepted from employment under section 210(a) (1) (A) of the Act in effect prior to 1955 unless:

(i) The cash remuneration paid for agricultural labor performed for the employer by the employee in the calendar quarter is $50 or more; and

(ii) Such employee is regularly employed in the calendar quarter by such employer to perform such agricultural labor.

Unless the tests set forth in both subdivisions (i) and (ii) of this subparagraph are met, the services are excepted from employment under section 210 (a) (1) (A).

(3) The test relating to cash remuneration of $50 or more is based on the remuneration earned during a calendar quarter rather than on remuneration paid in a calendar quarter. However, for purposes of determining whether the test is met, it is also required that the remuneration be paid, although it is immaterial when the remuneration is paid. Furthermore, in determining whether $50 or more has been paid for agricultural labor performed in a calendar quarter, only cash remuneration for agricultural labor shall be taken into account. (Since services performed in connection with the ginning of cotton or in connection with the production or harvesting of those oleoresinous products described in paragraph (b) of this section and services of certain foreign agricultural workers described in paragraph (c) of this section do not constitute agricultural labor for the purposes of this paragraph, any remuneration paid for such service is disregarded in determining whether the cash remuneration test is met.) The term "cash remuneration" includes checks and other monetary media of exchange. Remuneration paid in any other medium, such as lodging, food, clothing, farm products, or other goods or commodities, is disregarded in determining whether the cash remuneration test is met. For provisions relating to the exclusion from wages of remuneration paid in any medium other than cash for agricultural labor, see § 404.1027(m) (2).

(4) For the purpose of this paragraph, an individual is deemed to be regularly employed by an employer during a calendar quarter (including the first quarter of 1951) if:

(i) Such individual performs agricultural labor for such employer on a fulltime basis on at least 60 days (whether or not consecutive) during such calendar quarter; and

(ii) The calendar quarter was immediately preceded by a qualifying quarter. An individual shall also be deemed to be regularly employed by an employer during a calendar quarter if such individual was regularly employed (upon application of subdivisions (i) and (ii) of this subparagraph) by such employer during the preceding calendar quarter.

(5) A qualifying quarter is (i) any calendar quarter during all of which the individual was continuously employed by the employer, or (ii) any subsequent calendar quarter during which such individual performs agricultural labor for such employer on a full-time basis on at least 60 days during such quarter if, after the last calendar quarter during which such individual was continuously employed by such employer, such individual performs agricultural labor for such employer on a full-time basis on at least 60 days during each intervening calendar quarter. A calendar quarter prior to the last calendar quarter of 1950 may not be a qualifying quarter.

(6) The requirement that an employee be continuously employed by an employer during all of a calendar quarter is met by the existence of the employeremployee relationship throughout an entire calendar quarter, whether or not the employee does any work for the employer during the calendar quarter. Moreover, a calendar quarter in which the employee is continuously employed by the employer is a qualifying quarter, irrespective of whether the employee is employed to perform agricultural labor. For example, the calendar quarter in which the employee is continuously employed by the employer to perform services in a grocery store or any business conducted by the employer is a qualifying quarter.

(7) In order to satisfy the requirement of the performance of agricultural labor on a full-time basis on at least 60 days during a calendar quarter, the arrangement under which an employee performs agricultural labor for an employer must contemplate the performance of such labor on a full-time basis, and the employee must perform agricultural labor for the employer on at least 60 days during the calendar quarter. Thus, the requirement of the performance of agricultural labor on a full-time basis relates to the arrangement under which the employee is engaged to perform agricultural labor, whereas the requirement of the performance of agricultural labor on at least 60 days during a calendar quarter relates to the performance of agricultural labor by the employee on the required number of days during such calendar quarter.

(8) An arrangement for the performance of agricultural labor on a full-time basis means an arrangement under which an employee is engaged to perform

agricultural labor for a single employer on the basis of a full workday. The term "full workday" as used in the preceding sentence has reference to the full workday prevailing in the particular locality for the type of agricultural occupation in which the employee is engaged. The fact that an employee who performs agricultural labor primarily for one employer also performs other services of an incidental character for such employer or any incidental services for some other person does not prevent such employee from being engaged on a full-time basis in the performance of agricultural labor for such employer.

Example. A, the operator of a dairy farm, employs B, a schoolboy, for 2 hours each morning before school and 2 hours each afternoon after school to assist him in the operation of the dairy farm. In addition, B works for A 10 hours each Saturday in the performance of the same type of work. The full workday in the particular locality for a dairy farm worker is a period of 8 hours. Each full calendar quarter B remains in the employ of A constitutes a qualifying quarter for the reason that B is continuously employed by A in each such quarter. Since under the arrangement B is engaged to perform agricultural labor for A on the basis of a full workday only on Saturdays, only the Saturdays constitute days on which B performs agricultural labor for A on a full-time basis. The other days of the week do not constitute days on which B performs agricultural labor for A on a full-time basis, since the arrangement contemplates the performance of agricultural labor on such days on less than a full workday.

(9) In determining whether an employee has performed agricultural labor on at least 60 days during a calendar quarter, there is counted as 1 day:

(i) Any day or portion thereof on which the employee actually performs such labor; and

(ii) Any day or portion thereof on which the employee does not perform agricultural labor but with respect to which cash remuneration is paid or payable to the employee for such labor, such as a day on which the employee is sick or on vacation. An employee who on a particular day reports for work and, at the direction of his employer, holds himself in readiness to perform agricultural labor is considered to be engaged in the actual performance of such labor on that day. For the purposes of this section, a day is a period of 24 hours commencing at midnight and ending at midnight.

(10) An individual who is regularly employed in a calendar quarter under the test set forth in subparagraph (4) (1) and (ii) of this paragraph is also considered to be regularly employed in the next succeeding calendar quarter, irrespective of whether he performs any service during such succeeding quarter. Thus, such individual continues to be regularly employed until the end of such succeeding calendar quarter, even though he does not perform agricultural labor on a full-time basis on 60 days during such quarter. If in such succeeding calendar quarter such individual does not perform agricultural labor on a full-time basis on at least 60 days, such individual must meet the test set forth in subparagraph (4) (i) and (ii) of this paragraph in order to qualify as regularly employed in any subsequent calendar quarter.

(11) For information about tests applicable in determining the status of cash remuneration paid after 1954 for agricultural labor, see § 404.1027 (1).

(e) Definitions—(1) In general. (i) The term "agricultural labor" as defined in section 210(f) of the Act includes services of the character described in subparagraphs (2), (3), (4), (5), and (6) of this paragraph. In general, however, the term does not include services performed in connection with forestry, lumbering, or landscaping.

(ii) The term "farm” as used in the regulations in this part includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, orchards, and such greenhouses and other similar structures as are used primarily for the raising of agricultural or horticultural commodities. Greenhouses and other similar structures used primarily for other purposes (for example, display, storage, and fabrication of wreaths, corsages, and bouquets) do not constitute “farms.”

(2) Services described in section 210 (f) (1) of the Act. (i) Services performed on a farm by an employee of any person in connection with any of the following activities constitute agricultural labor:

(a) The cultivation of the soil;

(b) The raising, shearing, feeding, caring for, training, or management of livestock, bees, poultry, fur-bearing animals, or wildlife; or

(c) The raising or harvesting of any other agricultural or horticultural commodity.

(ii) Services performed in connection with the production or harvesting of maple sap, the raising or harvesting of mushrooms, or the hatching of poultry constitute agricultural labor only if such services are performed on a farm. Thus, services performed in connection with the operation of a hatchery, if not operated as part of a poultry or other farm, do not constitute agricultural labor. Services performed in the processing (as distinguished from the gathering) of maple sap into maple syrup or maple sugar do not constitute agricultural labor, even though such services are performed on a farm.

(3) Services described in section 210 (f) (2) of the Act. (i) The following services performed by an employee in the employ of the owner or tenant or other operator of one or more farms constitute agricultural labor, provided the major part of such services is performed on a farm:

(a) Services performed in connection with the operation, management, conservation, improvement, or maintenance of any of such farms or its tools or equipment; or

(b) Services performed in salvaging timber, or clearing land of brush and other debris, left by a hurricane.

(ii) The services described in subdivision (i) (a) of this subparagraph may include, for example, services performed by carpenters, painters, mechanics, farm supervisors, irrigation engineers, bookkeepers, and other skilled or semiskilled workers, which contribute in any way to the conduct of the farm or farms, as such, operated by the person employing them, as distinguished from any other enterprise in which such person may be engaged.

(iii) Since the services described in this subparagraph must be performed in the employ of the owner or tenant or other operator of the farm, the term "agricultural labor" does not include services performed by employees of a commercial painting concern, for example, which contracts with a farmer to renovate his farm properties.

(4) Services described in section 210 (f) (3) of the Act. Services performed by an employee in the employ of any person in connection with any of the following operations constitute agricultural labor without regard to the place where such services are performed:

(i) The ginning of cotton;

(ii) The operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying or storing water for farming purposes; or

(iii) The production or harvesting of crude gum (oleoresin) from a living tree or the processing of such crude gum into gum spirits of turpentine and gum resin, provided such processing is carried on by the original producer of such crude gum. (See paragraph (b) of this section for exception of such services from employment for periods prior to 1955 and paragraph (f) of this section for exceptions of such services from employment for periods after 1954 and before 1959.)

(5) Services described in section 210 (f) (4) of the Act. (i) Services performed by an employee in the handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, of any agricultural or horticultural commodity constitute agricultural labor if:

(a) Such services are performed by the employee in the employ of an operator of a farm or in the employ of a group of operators of farms (other than a cooperative organization);

(b) Such services are performed with respect to the commodity in its unmanufactured state; and

(c) Such operator produced more than one-half of the commodity with respect to which such services are performed during the pay period, or such group of operators produced all of the commodity with respect to which such services are performed during the pay period.

(ii) The term "operator of a farm" as used in this subparagraph means an owner, tenant, or other person, in possession of a farm and engaged in the operation of such farm.

(iii) The services described in this subparagraph do not constitute agricultural labor if performed in the employ of a cooperative organization. The term "organization" includes corporations, joint-stock companies, and associations which are treated as corporations under the Internal Revenue Code. For the purposes of this subparagraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar quarter in which the services involved are performed.

(iv) Processing services which change the commodity from its raw or natural state do not constitute agricultural labor. For example, the extraction of juices from fruits or vegetables is a processing operation which changes the character of the fruits or vegetables from their raw or natural state and, therefore, does not constitute agricultural labor. On the other hand, services rendered in the cutting and drying of fruits or vegetables are processing operations which do not change the character of the fruits or vegetables and, therefore, constitute agricultural labor, if the other requisite conditions are met. Services performed with respect to a commodity after its character has been changed from its raw or natural state by a processing operation do not constitute agricultural labor.

(v) The term "commodity" refers to a single agricultural or horticultural product. For example, all apples are to be treated as a single commodity, while apples and peaches are to be treated as two separate commodities. The services with respect to each such commodity are to be considered separately in determining whether the condition set forth in subdivision (i) (c) of this subparagraph (5) has been satisfied. The portion of the commodity produced by an operator or group of operators with respect to which the services described in this subparagraph are performed by a particular employee shall be determined on the basis of the pay period in which such services were performed by such employee.

(vi) The services described in this subparagraph do not include services performed in connection with commercial canning or commercial freezing or in connection with any commodity after its delivery to a terminal market for distribution for consumption. Moreover, since the services described in this subparagraph must be rendered in the actual handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, of the commodity, such services do not, for example, include services performed as stenographers, bookkeepers, clerks, and other office employees, even though such services may be in connection with such activities. However, to the extent that the services of such individuals are performed in the employ of the owner or tenant or other operator of a farm and are rendered in major part