The term “retail” is alien to some businesses or operations. For example, transactions of an insurance company are not ordinarily thought of as retail transactions. The same is true of an electric power company selling electrical energy to private consumers. As to establishments of such businesses, therefore, a concept of retail selling or servicing does not exist. That it was the intent of Congress to exclude such businesses from the term “retail or service establishment” is clearly demonstrated by the legislative history of the 1949 amendments and by the judicial construction given said term both before and after the 1949 amendments. It also should be noted from the judicial pronouncements that a “retail concept” cannot be artificially created in an industry in which there is no traditional concept of retail selling or servicing. (95 Cong. Rec. pp. 1115, 1116, 12502, 12506, 21510, 14877, and 14889; Mitchell v. Kentucky Finance Co., 359 U.S. 290; Phillips Co. v. Walling, 324 U.S. 490; Kirschbaum Co. v. Walling, 316 U.S. 517; Durkin v. Joyce Agency, Inc., 110 F. Supp. 918 (N.D. Ill.) affirmed sub nom Mitchell v. Joyce Agency, Inc., 348 U.S. 945; Goldberg v. Roberts 291 F. 2d 532 (CA-9); Wirtz v. Idaho Sheet Metal Works, 335 F. 2d 952 (CA-9), affirmed in 383 U.S. 190; Telephone Answering Service v. Goldberg, 290 F. 2d 529 (CA-1).) It is plain, therefore, that the term “retail or service establishment” as used in the Act does not encompass establishments in industries lacking a “retail concept”. Such establishments not having been traditionally regarded as retail or service establishments cannot under any circumstances qualify as a “retail or service establishment” within the statutory definition of the Act, since they fail to meet the first requirement of the statutory definition. Industry usage of the term “retail” is not in itself controlling in determining when business transactions are retail sales under the Act. Judicial authority is quite clear that there are certain goods and services which can never be sold at retail. (Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 202, rehearing denied 383 U.S. 963; Wirtz v. Steepleton General Tire Company, Inc., 383 U.S. 190, 202, rehearing denied 383 U.S. 963.)
Notes of Decisions
Reich v. John Alden Life Ins., 126 F.3d 1 (1st Cir. 1997).
“However, as the Secretary recognizes, insurance companies are not retail or service establishments within the meaning of the FLSA, see 29 C.F.R. § 779.316 , and thus this provision is inapplicable to the present case.”
Johnson v. Wave Comm GR LLC, 4 F. Supp. 3d 423 (N.D.N.Y. 2014).
· cites it 2× “See Kelly, 2010 WL 1541585 , at *11 (citing 29 C.F.R. §§ 779.316 , .322). i. Retail Concept A business must have a retail concept before the industry characterization of its sales can be considered.”
John Hogan v. Allstate Ins. Co., 361 F.3d 621 (11th Cir. 2004).
“But, 29 C.F.R. § 779.316 makes clear that transactions of an insurance company are not considered retail or servicing transactions for purposes of the FLSA.”
Charlot v. Ecolab, Inc., 136 F. Supp. 3d 433 (E.D.N.Y 2015).
“(citing 29 C.F.R. §§ 779.316 , 322.) In addition to operating in an industry that has a concept of retail sales or services, “a business must be ‘ordinarily available to the general public’ to qualify as a retail or service establishment, although the physical location of the…”
Duffy v. Oele, 274 F. Supp. 307 (W.D. Mich. 1967).
· cites it 2× “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; * * In order for a retail or service…”
Gieg v. Ddr, Inc., 407 F.3d 1038 (9th Cir. 2005).
“29 C.F.R. § 779.316 . Among those businesses that lack a retail concept are credit companies, insurance companies, including insurance brokerage, agents and claims adjustment offices, and finance companies.”
Hogan v. Allstate Ins., 210 F. Supp. 2d 1312 (M.D. Fla. 2002).
“29 C.F.R. § 779.316 . Since the “servicing” activities of Plaintiffs are clearly ancillary to Defendant’s principal production activity (the creation of insurance policies) the “servicing” aspect of Plaintiffs’ duties are also considered administrative within the meaning of…”
Futrell v. Columbia Club, Inc., 338 F. Supp. 566 (S.D. Ind. 1971).
“” These are also words of exception and should be strictly construed against the defendant.”
Homemakers Home & Health Care Servs., Inc. v. Carden, 538 F.2d 98 (6th Cir. 1976).
“2d 694 (1966); 29 C.F.R. § 779.316 . * * * * * * The second step in ascertaining whether the retail or service establishment exemption applies, is reached only if it is first determined that the retail concept applies to the establishment’s business.”
McLaughlin v. Dill, 696 F. Supp. 401 (N.D. Ind. 1988).
“The “retail concept” is discussed at 29 C.F. R. 779.316, as follows: The term “retail” is alien to some businesses or operations.”
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