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. § 779.385

May qualify as exempt establishments

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An amusement or recreational establishment operating on a seasonal basis may qualify as an exempt establishment under section 13(a)(3) of the Act, added by the 1966 amendments, even if it does not meet all the requirements of the 13(a)(2) exemption. Section 13(a)(3) exempts from the minimum wage and overtime pay requirements of the Act “any employee employed by an establishment which is an amusement or recreational establishment, if (a) it does not operate for more than seven months in any calendar year or (b) during the preceding calendar year, its average receipts for any 6 months of the year were not more than 33 1/3 percentum of its average receipts for the other 6 months of such year”. “Amusement or recreational establishments” as used in section 13(a)(3) are establishments frequented by the public for its amusement or recreation and which are open for 7 months or less a year or which meet the seasonal receipts test provided in clause (B) of the exemption. Typical examples of such are the concessionaires at amusement parks and beaches. (S. Rept. 145, 87th Cong., first session, p. 28; H. Rept. 75, 87th Cong., 1st Sess., p. 10.)

Notes of Decisions
Cited in 15 cases, 1987–2019 · leading case: Hill v. Delaware North Companies Sportservice, Inc., 838 F.3d 281 (2d Cir. 2016).
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Hill v. Delaware North Companies Sportservice, Inc., 838 F.3d 281 (2d Cir. 2016). · cites it 8× “The rule that discusses the exemption most extensively is 29 C.F.R. § 779.385 , which provides that: “Amusement or recreational establishments” as used .”
Morales v. 22nd Dist. Agric. Ass'n, 26 Wage & Hour Cas.2d (BNA) 1286 (Cal. Ct. App. 2016). · cites it 3× “§ 213 (a)(3); 29 C.F.R. § 779.385 (2015).) The first element has two subparts: (1) identifying the “establishment” and (2) determining the “amusement or recreational” nature of that establishment.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590 (11th Cir. 1995). “2d at 1257 , citing 29 C.F.R. § 779.385 . The Court finds that Sarasota White Sox, Inc.”
Chen v. Major League Baseball Props., Inc., 798 F.3d 72 (2d Cir. 2015). “FanFest, as a gathering of sports enthusiasts for the purposes of entertainment— comprising of games, sporting activities, and exhibitions — clearly fits within the plain meaning of these terms. While Fan-Fest 'is not a sports venue in the same manner as a baseball stadium or a…”
Chen v. Major League Baseball, 6 F. Supp. 3d 449 (S.D.N.Y. 2014). “Moreover, FanFest is alleged to have taken place at a discrete location (the Javits Center) over a discrete period in time (All Star Week).”
Jones v. Bryant Park Mkt. Events, LLC, No. 15-2688-Cv, 658 F. App'x 621 (2d Cir. 2016). “We answer this question in the affirmative. To be sure, the District Court identified in its ruling some factors tending to indicate that Winter Village is recreational.”
Ivanov v. Sunset Pools Mgmt. Inc., 567 F. Supp. 2d 189 (D.D.C. 2008). “” 29 C.F.R. § 779.385 . Courts previously called on to construe this term have recognized the lack of legislative history, but have also consistently noted that the exemption’s purpose is to cover “ ‘such seasonal recreational or amusement activities as amusement parks,…”
William E. Brock, Sec'y of Labor v. Louvers & Dampers, Inc. D/B/A Bel-Wood Country Club & Ted Stacy, 817 F.2d 1255 (6th Cir. 1987). ““Amusement or recreational establishment” was not defined in the statute itself, but the regulations drawn from the legislative history provide the following definition: “Amusement or recreational establishments” as used in section 13(a)(3) are establishments frequented by the…”
Gibbs v. Montgomery Cnty. Agric. Soc'y, 140 F. Supp. 2d 835 (S.D. Ohio 2001). · cites it 2× “” See 29 C.F.R. § 779.385 . In any event, an “amusement or recreational establishment” qualifies for the exemption provided by 29 U.”
Karnes v. Happy Trails RV Park, LLC, 361 F. Supp. 3d 921 (E.D. Mo. 2019). “29 C.F.R. § 779.385 . Plaintiffs claim that the RV Park is not a recreational facility because although it may have ancillary recreational facilities like a pool and a fishing pond, approximately 95% of the park's business comes from RV campground site rentals, with the…”
John Mann v. Michael Falk, 523 F. App'x 549 (11th Cir. 2013). “” 29 C.F.R. § 779.385 . Consistent with the regulation, our precedents establish that the business of a recreational establishment is to provide amusement or entertainment for its customers.”
Hamilton v. Tulsa Cnty. Pub. Facilities Auth., 85 F.3d 494 (10th Cir. 1996). “” 29 C.F.R. § 779.385 . An amusement or recreational establishment employer qualifies for the exemption if “(A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year…”
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