C.F.R.
»
Title 29
» CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER B—STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT DIRECTLY RELATED TO REGULATIONS › PART 779—THE FAIR LABOR STANDARDS ACT AS APPLIED TO RETAILERS OF GOODS OR SERVICES › Subpart D—Exemptions for Certain Retail or Service Establishments
Some exemptions depend on the character of the establishment by which an employee is employed. These include the “retail or service establishment” exemptions in sections 13(a) (2), (4), and (11) and the exemptions available to the establishments of the character specified in sections 13(a) (3), (9), and 13(b)(8) (first part). Therefore, if the establishment meets the tests enumerated in these sections, employees “employed by” that establishment are generally exempt from sections 6 and 7. (See §§ 779.307 to 779.309 discussing “employed by.”) Other exemptions establish two criteria, the character of the establishment and the nature of the conditions of the employment of the particular employee. Such exemptions are set forth in section 13(b)(8) (second part), and section 13(b)(18) and (19). To determine whether the exemptions of these sections apply it is necessary to determine both that the establishment meets the enumerated tests and that the employee is engaged in the enumerated activities or employed under the conditions specified. Thus, under section 13(b)(18) some of the employees of a given employer may be exempt from the overtime pay requirements (but not the minimum wage) of the Act, while others may not.
Notes of Decisions
Morales v. 22nd Dist. Agric. Ass'n, 26 Wage & Hour Cas.2d (BNA) 1286 (Cal. Ct. App. 2016).
· cites it 3× “” ( 29 C.F.R. § 779.302 (2015).) “[I]f the establishment meets the tests enumerated in these sections, employees ‘employed by’ that establishment are generally exempt” from the FLSA’s overtime provision.”
Quinteros v. Sparkle Cleaning, Inc., 532 F. Supp. 2d 762 (D. Maryland 2008).
· cites it 2× “302 (entitled "Exemptions depend on the character of establishment”), states that Some exemptions depend on the character of the establishment by which an employee is employed. These include ... the exemptions available to the establishments of the character specified in…”
Hamilton v. Tulsa Cnty. Pub. Facilities Auth., 85 F.3d 494 (10th Cir. 1996).
“By its own terms, § 213(a)(3) of the FLSA exempts employees employed by amusement or recreational establishments; it does not exempt employees on the basis of the work performed at an amusement or recreational establishment.”
F. Ray Marshall, Sec'y of Labor, United States Dep't of Labor v. Sundial Assocs., Ltd., 588 F.2d 120 (5th Cir. 1979).
“311 ) that are explicitly to be applied to a number of exemptions including § 213(b)(8), 29 C.F.R. § 779.302 . 3 . The district judge’s findings of fact indicate that SRP’s revenues in 1973, 1974 and 1975 were $46,229, $363,403, and $1,134,268 respectively.”
Wessling v. Carroll Gas Co., 266 F. Supp. 795 (N.D. Iowa 1967).
“1966) brings plaintiff under the retail exemption of Section 213(a) (2) in that Carroll Gas Company is one establishment. Section 779.305 provides: " * * * the retail portion of an establishment would be considered a separate establishment from the unrelated portion for the…”
Shultz v. Hasam Realty Corp., 316 F. Supp. 1136 (S.D. Fla. 1970).
“29 C.F.R. §§ 779.302 , 779.-305 (1970). While this portion of the bulletin is couched primarily in terms geared to the retail or service establishment exemptions, it is nevertheless helpful as indicative of the Department of Labor interpretation of the word “establishment.”
Wirtz v. Keystone Readers Serv., Inc., 418 F.2d 249 (5th Cir. 1969).
“See 29 C.F.R. § 779.302 . If it is not an establishment “the principal activity of which is to furnish service [or goods] to the consuming public," Fleming v.”
Morales v. 22nd Dist. Agric. Assn. (Cal. Ct. App. 2016).
· cites it 2× “" ( 29 C.F.R. § 779.302 (2015).) "[I]f the establishment meets the tests enumerated in these sections, employees 'employed by' that establishment are generally exempt" from the FLSA's overtime provision.”
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