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

29 C.F.R. § 779.312

“Retail or service establishment”, defined in section 13(a)(2)

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The 1949 amendments to the Act defined the term “retail or service establishment” in section 13(a)(2). That definition was retained in section 13(a)(2) as amended in 1961 and 1966 and is as follows:

A “retail or service establishment” shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.It is clear from the legislative history of the 1961 amendments to the Act that no different meaning was intended by the term “retail or service establishment” from that already established by the Act's definition, wherever used in the new provisions, whether relating to coverage or to exemption. (See S. Rept. 145, 87th Cong., first session p. 27; H.R. 75, 87th Cong., first session p. 9.) The legislative history of the 1949 amendments and existing judicial pronouncements regarding section 13(a)(2) of the Act, therefore, will offer guidance to the application of this definition.
Notes of Decisions
Cited in 9 cases (5 in the last 5 years), 1988–2023 · leading case: Ramon Alvarado v. Corp. Cleaning Servs., I, 782 F.3d 365 (7th Cir. 2015).
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Ramon Alvarado v. Corp. Cleaning Servs., I, 782 F.3d 365 (7th Cir. 2015). “The brief cites departmental regulations that attempt to define a “retail or service establishment” by listing factors of dubious relevance, such as that “75 per centum of [its] annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized…”
Robert B. Reich, Sec'y of Labor United States Dep't of Labor v. Delcorp, Inc., a Corp. Arizona Carpet Cleaning, Inc., a Corp., 3 F.3d 1181 (8th Cir. 1993). “See 29 C.F.R. §§ 779.312 , 779.411 (1992). In 1966, Congress decided to extend FLSA coverage to the laundry industry generally.”
La Parne v. Monex Deposit Co., 714 F. Supp. 2d 1035 (C.D. Cal. 2010). · cites it 3× “In this Motion for Summary Judgment, Defendants only seek a determination regarding whether Monex falls within this first element of the exemption, whether Monex is a “retail or service establishment.” Section 7(i) does not define “retail or service establishment.”
McLaughlin v. Dill, 696 F. Supp. 401 (N.D. Ind. 1988). · cites it 2× “Part 779 Sub-part D, and an interpretive bulletin found at 29 C.F.R. sections 779.312 et seq. The pertinent part of the interpretive bulletin states: (I)t is clear from the legislative history of the 1961 amendments to the Act that no different meaning was intended by the term…”
Salazar v. Driver Provider Phoenix LLC (D. Ariz. 2023). · cites it 2× “See 29 C.F.R. § 779.312 et seq.; see 17 also Gieg, 407 F.”
Salazar v. Driver Provider Phoenix LLC (D. Ariz. 2023). · cites it 2× “See 29 C.F.R. § 779.312 ; see 27 also Gieg, 407 F.”
Simmons v. Futo's, Inc. (N.D. Ga. 2022). “at 5-6 (citing 29 C.F.R. § 779.312 , 313). The Defendants assert that Futo’s services are not for resale because it is paid for tows directly by the vehicle owner, regardless of whether the owner is the person who called for the tow.”
Gonzalez v. Diamond Resorts Int'l Mktg., Inc. (D. Nev. 2021). “” 8 29 C.F.R. § 779.312 . Consequently, to qualify as a retail or service establishment: 9 “(a) [Diamond must] engage in the making of sales of goods or services; and (b) 75 percent of its 10 sales of goods or services, or of both, must be recognized as retail in the particular…”
Delara v. Diamond Resorts Int'l Mktg., Inc. (D. Nev. 2021). “” 9 29 C.F.R. § 779.312 . Consequently, to qualify as a retail or service establishment: 10 “(a) [Diamond must] engage in the making of sales of goods or services; and (b) 75 percent of its 11 sales of goods or services, or of both, must be recognized as retail in the particular…”
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