Many current FLSA compensation issues which are the subject of widespread litigation – such as the current wave of intern cases – have their legal underpinnings in Supreme Court authority decided during the 1940s in the years following the enactment of the FLSA (1938) and the Portal-to-Portal Act (1947).  For example, courts seeking to interpret the FLSA’s applicability to interns—given the statute’s lack of a definition of intern, volunteer, etc.— have continued to refer to the Supreme Court’s 1947 decision in Walling v. Portland Terminal Co., 330 U.S. 148 (U.S. 1947).

Portland Terminal concerned training provided to prospective yard brakemen by the Portland Terminal Company, which controlled railroad switching activity in Maine. The mandatory training took seven or eight days, during which the prospect learned the routine activities of a brakeman by observation, and then was “gradually permitted to do actual work under close scrutiny.”  This supervised work did “not expedite the company business, but . . . sometimes d[id] actually impede and retard it.”   The Court’s opinion, written by Justice Hugo Black, held that because the railroad derived no “immediate advantage” from this closely-supervised activity, it did not constitute employment for compensation under the FLSA.

In a strongly-worded concurrence, Justice Frankfurter lamented that the Court’s other early decisions, by declining to defer to industry custom as reflected in the bargaining of authorized representatives under the National Labor Relations Act, or even to the Wage and Hour Administrator, had already rejected the “two ways of giving real force and meaning to this Act without throwing all industry and labor into strife and litigation.”  Calling for the Court to “reconsider its approach to cases under this Act,” he agreed only with the judgment, claiming that the agreement of the parties was sufficient to take the dispute outside the purview of the nascent FLSA.

Still “guiding law,” courts continue to look to cases such at Portland Terminal for direction, despite the constant and rapid evolution of the workplace, as Supreme Court decisions addressing the FLSA are limited.