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. § 779.323

Particular industry

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In order to determine whether a sale or service is recognized as a retail sale or service in the “particular industry” it is necessary to identify the “particular” industry to which the sale or service belongs. Some situations are clear and present no difficulty. The sale of clothes, for example, belongs to the clothing industry and the sale of ice belongs to the ice industry. In other situations, a sale or service is not so easily earmarked and a wide area of overlapping exists. Household appliances are sold by public utilities as well as by department stores and by stores specializing in the sale of such goods; and tires are sold by manufacturers' outlets, by independent tire dealers and by other types of outlets. In these cases, a fair determination as to whether a sale or service is recognized as retail in the “particular” industry may be made by giving to the term “industry” its broad statutory definition as a “group of industries” and thus including all industries wherein a significant quantity of the particular product or service is sold. For example, in determining whether a sale of lumber is a retail sale, it is the recognition the sale of lumber occupies in the lumber industry generally which decides its character rather than the recognition such sales occupies in any branch of that industry.

Notes of Decisions
Cited in 3 cases, 1966–2010 · leading case: Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190 (1966).
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Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190 (1966). “The Secretary has in fact quite properly looked carefully at usage and practice in each industry before taking a position, 29 CFR § 779.323 (1965), but he cannot be hamstrung by the terminology of a particular trade.”
Wirtz v. Campus Chefs, Inc., 303 F. Supp. 1112 (N.D. Ga. 1968). “29 CFR § 779.323 . Its “sales are numerous and involve small quantities of goods and services,” are received by the “general consuming public” and easily distinguishable from a wholesale food operation.”
La Parne v. Monex Deposit Co., 714 F. Supp. 2d 1035 (C.D. Cal. 2010). “” 29 C.F.R. § 779.323 . Here, the industry is precious metals sales.”
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