The ``contract,'' ``custom'' or ``practice'' on which the compensability of the activities referred to in section 4 of the Portal Act may be based, is a contract, custom or practice in effect ``at the time of such activity.'' Thus, the compensability of such an activity, and its inclusion in computation of hours worked, is not determinable by a custom or practice which had been terminated before the activity was engaged in or was adopted some time after the activity was performed. This phrase would also seem to permit recognition of changes in customs, practices and agreements which reflect changes in labor-management relations or policies. Sec. 790.12 ``Portion of the day.''
A ``preliminary'' or ``postliminary'' activity of the kind referred to in section 4 of the Portal Act is compensable under a contract, custom, or practice within the meaning of that section ``only when it is engaged in during the portion of the day with respect to which it is so made compensable.'' \84\ This provision in no way affects the compensability of activities performed within the workday proper or the computation of hours worked within such workday for purposes of the Fair Labor Standards Act; \85\ the provision is applicable only to walking, riding, traveling or other ``preliminary'' or ``postliminary'' activities of the kind described in section 4(a) of the Portal Act, \86\ which are engaged in outside the workday, during the portions of the day before performance of the first principal activity and after performance of the last principal activity of the employee. \87\---------------------------------------------------------------------------
\84\ Section 4(c) of the Portal Act (set out in full in Sec. 790.3).
\85\ See Sec. Sec. 790.4-790.6.
\86\ Conference Report, pp. 12, 13.
\87\ See Conference Report, p. 13; Sec. Sec. 790.4(c) and 790.5(b).
The scope of section 4(c) is narrower in this respect than that of section 2(b), which is couched in identical language. Cf. Conference Report, pp. 9, 10; pp. 12, 13. See also Sec. 790.23.---------------------------------------------------------------------------
Defense of Good Faith Reliance on Administrative Regulations, etc.