L. 101-157; 103 Stat. 938 (repealing Former FLSA Section 13(a)(2), 29 U.S.C. § 213(a)(2)); Reich v. Delcorp, Inc., 3 F.3d 1181, 1183 (8th Cir. 1993) (FLSA Section 13(a)(2)’s definition of “retail or service establishment” applies to Section 7(i) after Congress repealed Section 13(a)(2)).Your letter indicates that the dealership is an establishment with an annual dollar volume of sales of goods or services (or of both) of at least 75 per cent that is not for resale and is recognized as retail sales and service in the retail automobile dealership industry.
L. 101-157; 103 Stat. 938 (repealing Former FLSA Section 13(a)(2), 29 U.S.C. § 213(a)(2)); Reich v. Delcorp, Inc., 3 F.3d 1181, 1183 (8th Cir. 1993) (FLSA Section 13(a)(2)'s definition of "retail or service establishment" applies to Section 7(i) after Congress repealed Section 13(a)(2)).Your letter indicates that the dealership is an establishment with an annual dollar volume of sales of goods or services (or of both) of at least 75 per cent that is not for resale and is recognized as retail sales and service in the retail automobile dealership industry.
On April 2, 2018, the Supreme Court of the United States issued its opinion in Encino Motorcars, LLC v. Navarro, holding that, because service advisors at car dealerships are “salesm[e]n . . . primarily engaged in . . . servicing automobiles,” 29 U.S.C. § 213(b)(10)(A), they are exempt from the Fair Labor Standards Act’s (“FLSA”) overtime-pay requirement. According to the National Automobile Dealers Association, more than 100,000 service advisors are employed at dealerships nationwide.
One of the industry-specific overtime exemptions contained in 29 U.S.C. § 213(b) is the exemption from overtime applicable to sales employees engaged in selling “trailers, boats, or aircraft, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers.” Judge Carlton W. Reeves of the Southern District of Mississippi recently addressed the applicability of this exemption to the sale of mobile homes.Cliburn v. Manufactured Home Ctr., Inc., 2012 U.S. Dist. LEXIS 182695 (S.D. Miss. Dec. 28, 2012).
At the intersection of wage-and-hour and maritime law are the FLSA’s “seaman” exemptions: the exemption from minimum wage and overtime codified at 29 U.S.C. §213(a)(12) and the overtime exemption codified at 29 U.S.C. §213(b)(6).These exemptions often are confused or collapsed with the definition of a “seaman” for purposes of the Jones Act, separate federal legislation regulating maritime activities relating to coastal shipping.See generally Pacific Merchant Shipping Ass’n v. Aubry, 918 F.2d 1409, 1413 (9th Cir. 1990).
While FLSA exemption litigation is often focused on the “white collar” exemptions, practitioners are fond of noting that the FLSA contains many other exemptions, such as industry-specific exemptions.These include specifically those codified at 29 U.S.C. § 213(b).One such exemption is the exemption for salesmen, mechanics and partsmen codified at 29 U.S.C. § 213(b)(10).
Strikingly, even our alternative recommendations go quite a ways towards deregulation with respect to a white-collar-exempt-employee's wages. Of course, completely eliminating the compensation requirement would not only ensure that USDOL has acted within its authority under 29 U.S.C. § 213(a) as well as make the application of exemptions easier, it might just be the greatest means for educating all that being paid a "salary" is not "the" test.Why Those Calling For A Higher Salary Level Test Are, Candidly, WrongOf course, some stakeholders continue to advocate for a higher salary level test, that incentive pay should be excluded from the test, and even for a fully automated update process. The difference is that our recommendations are based on USDOL's actual task and other practical matters within its scope of authority.USDOL is authorized to, in fact has been directed to, define the white-collar exemptions: executive, administrative, professional, and outside sales.
But the question all court watchers wanted answered was this: Does the First Amendment protect the baker's right to deny services to same sex-couples? That constitutional question went unanswered in Masterpiece Cakeshop; thus, it is unlikely that the decision will have any far-reaching impact.Encino Motorcars, LLC v. Navarro In Encino Motorcars, LLC v. Navarro, the Court considered whether service advisors at car dealerships are exempt under 29 U.S.C. § 213(b)(10)(A) from the FLSA's overtime pay requirements. In a tight 5-4 decision, the Court held that service advisors at car dealerships are exempt from the FLSA's overtime pay requirements because they are "salesm[e]n . . . primarily engaged in . . . servicing automobiles" under 29 U.S.C. § 213(b)(10)(A).
The court reasoned that the burden to show that the small vehicle exception applied was similar to a plaintiff’s initial burden to demonstrate that they were covered by the FLSA’s overtime requirement. Because the TCA’s exception was “not codified as an exemption” under 29 U.S.C. § 213, and was instead codified under the provision “defining when the FLSA mandates overtime pay” under 29 U.S.C. § 207, an employer should not have to carry the burden like it would an exemption. Instead, it should be part of the employee’s burden to show the FLSA’s overtime provision applies at all.
Unless you are a car dealer or work for one, that appears to be a pretty narrow issue, but the Court’s pronouncement may open the door to a less restrictive view of the act’s exemptions generally.Most of the exemption litigation under the FLSA turns on the so-called “white collar” exemptions, those for executive, administrative or professional employees, but Section 13 of the statute actually has scores of exemptions of different scopes applying to different types of employees and industries. These are generally found in 29 U.S.C. Section 213 (and, in particular, subsections a and b), and include everything from amusement parks to fishing, agriculture, small-town newspapers and maple syrup production. One of these various exemptions applies to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, truck, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.”