(dissenting).
I respectfully dissent because I believe that the majority opinion fails to state a standard useful for determining whether the helpers are Dr. Pepper’s employees. The cases which formulated the standard relied upon in the opinion arose out of a different factual setting that required a determination whether persons for whom the benefits of the FLSA were sought were employees or independent contractors. Here, in contrast, the question is whether persons hired by acknowledged employees to assist them with their work thereby become, for purposes of the Act, employees of the principal employer.
Since our 1943 decision in Walling v. Sanders, 136 F.2d 78, there has been a shift in judicial interpretation of the FLSA, from a strict construction suggesting hostility toward the purposes of the Act,1 to a liberal construction intended to carry out its remedial purposes. See, e. g., United States v. Silk, 331 U.S. 704, 712, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), cited in Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947).
As the Supreme Court stated in Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 706-707, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945):
The legislative history of the Fair Labor Standards Act shows an intent on the part of Congress to protect certain groups of the population from sub-standard wages and excessive hours which endangered the national health and well-being and the free flow of goods in interstate commerce. The statute was a recognition of the fact that due to the unequal bargaining power as between employer and employee, certain segments of the population required federal compulsory legislation to prevent private contracts on their part which endangered national health and efficiency and as a result the free movement of goods in interstate commerce. To accomplish this purpose standards of minimum wages and maximum hours were provided. [Footnotes omitted].
The Court noted that:
The legislative debates indicate that the prime purpose of the legislation was to aid the unprotected, unorganized and lowest paid of the nation’s working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage. 81 Cong. Rec. 7652, 7672, 7885; 82 Cong.Rec. 1386, 1395, 1491, 1505, 1507; 83 Cong. Rec. 7283, 7298, 9260, 9265. See also H.Rep.No.1452, 75th Cong., 1st Sess., p. 9; S.Rep.No.884, 75th Cong., 1st Sess., pp. 3—4. 324 U.S. 707 n. 18, 65 S.Ct. 902.
In order to achieve this goal, Congress adopted a definition of employment that Senator (later Justice) Black described as “the broadest definition that has ever been included in any one act.” United States v. Rosenwasser, 323 U.S. 360, 363 *303n. 3, 65 S.Ct. 295, 296, 89 L.Ed. 301 (1945), quoting 81 Cong.Rec. 7657. It defined “employ” as “to suffer or permit to work.” As the majority opinion recognizes, this language was used to evidence intent to regulate more than the common law employer-employee relationship. Nevertheless, the government is still required to show justification for making the putative employer responsible. Cf. Walling v. Sanders, supra.
In view of the congressional purpose, I would hold that despite the standard applied in other contexts, when the question is whether a person hired by an acknowledged employee thereby becomes an employee of the principal employer, the following test should be applied. A person is employed within the meaning of the Act when, with the knowledge and forbearance of the putative employer, he performs, in the furtherance of that employer’s business, work that confers a substantial benefit on that business. The benefit conferred may include increasing the efficiency of the employer’s business, enhancing the quality of its work product, increasing its profitability, and improving the working conditions of its acknowledged employees.
Applying this test, I would hold that at least some of the helpers were employees of Dr. Pepper for the purpose of the Act. We need not discuss the status of the helpers who were relatives of the route salesmen whom they assisted, because, as the district court memorandum opinion states, “where helpers were wives and children of route salesmen, plaintiff is not seeking minimum wage relief.” In arriving at this conclusion, I would hold clearly erroneous the trial court’s finding that the helpers conferred no economic benefit on the putative employer because they were “simply a convenience to the route salesmen.” The president of the company testified that the company benefited from tolerating the use of helpers by the route salesmen because thereby it was able to attract better qualified applicants. Further, Thomas Quick, a route salesman, testified that when he used a helper he finished his regular calls more quickly, and then made additional calls, selling more soda pop, and increasing both his own commissions and the company’s profits. Several witnesses testified that the use of helpers permitted the salesmen to finish their routes earlier, so that they had more free time. No witness testified that the use of helpers conferred no benefit on the company.
Further, the uncontested evidence also shows the company’s knowledge of the practice and its forbearance. It “discouraged” but did not prohibit the use of helpers. In fact, the company actually regulated the use of the helpers by instructing the route salesmen not to employ a helper under the age of 16, and forbidding the helpers’ entry into the plant.
This test is consistent with the result reached in our most recent decision, Burry v. National Trailer Convoy, Inc., 338 F.2d 422 (6th Cir. 1964), and with the results in Rutherford Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947), Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947), and Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961), the Supreme Court cases cited in the majority opinion, which considered only whether a worker was an employee or an independent contractor. In each of these cases the persons held to be employees were performing work, in furtherance of the employer’s business, and with his knowledge and forbearance, that substantially benefited his business.
I would not follow Wirtz v. Dr. Pepper Bottling Co., 374 F.2d 5 (5th Cir. 1967), which held on facts similar to those in this appeal that helpers who were hired by route salesmen to assist them were not employees of the distributor. Without analysis, that court uncritically applied a test derived from cases attempting to distinguish independent contractors from employees.
In my view, some of the helpers are employees of Dr. Pepper within the *304meaning of the FLSA, and I would reverse and remand to permit the district court to apply that test.
. For example, In Walling v. Sanders, 136 F.2d 78 (6th Cir. 1943), the court stated:
This appeal involving the coverage of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., illustrates to an extent even greater than do others recently considered, the difficulty that confronts a court in delineating the area which Congress has taken over for national supervision of employer-employee relationships in fields, hitherto considered within the domain reserved to the states, and illustrates also the persistence of administrative authority to seek the widest possible exercise of granted power. Since abandonment of old distinctions between what is national and what is local, the Congress has not, in commendable ventures in social legislation, granted to administrative bodies coextensive spheres of authority. Enforcement must therefore be kept within the limits both of constitutional and delegated power. 136 F.2d 78 [Emphasis added].